The Current Federal Court System -
Why you get the run around, and XXXXXX in the end!

thomas2.jpg (10011 bytes)



From: Karl Granse kgranse@earthlink.net
Sent: Wednesday, January 23, 2002 2:21 AM
Subject: The Current Federal Court System - Why you get the run around, and XXXXXX in the end!


I am re-sending this article, written by a number of Law Professors, (AT LEAST A YEAR IN THE MAKING) they are politically correct, but even THEY are pulling out their hair in frustration, they now want new laws from Congress, to impeach federal judges for not obeying and not ruling upon the statutes as Congress has written them in black and white. They are making recommendations to Congress to put an end to these "ex post facto" writing bunch of judges. This is by far, the best article I have ever read on the subject of judge made ex post facto law.

YOU AND I ARE NOT AT FAULT, IT'S NOT OUR PROCEDURES FOR THE MOST PART, THAT CAUSE LOSSES IN THE COURT - IT IS THE JUDGES - AND HERE IS YOUR PROOF - - IN BLACK AND WHITE

This is a must read, yes its long, but it gives you the word use knowledge and examples of how the judges avoid the truth in law and fact, and instead support their own agendas for their one world order, by use of your paper money and slave labor. The article also contains 355 Footnotes, helpful case law, etc.

The greater the number of people that know about this evil, the greater amount of energy can be generated to fix it! Judicial Watch is also a good team for some solutions in addressing the corrupt federal courts.

IT IS A CRIME FOR JUDGES TO WRITE LAW - ONLY CONGRESS HAS THAT POWER AS GIVEN BY THE CONSTUTION

ASK YOUR SELF - - - IF WE COULD GET THE JUDGES TO FOLLOW THE LAW AS WRITTEN AND STARE DECISIS - HOW WOULD THAT CHANGE HOW THE GOVERNMENT ACTS TOWARDS THE CITIZENS?

In all ways, the strategy and main theme of the government HAS BEEN AND IS to secretly and slowly brainwash you into a belief concept, that is; the walls oppression are closing in on you, and no matter what energy you put forth, you will not be able to defend yourself against their oppression (changes), no matter what law (case/constution/statute) you use as a sword to defend yourself, it will have no effect. They want you to feel defense-less, hopless, broken, isolated, and conqured, thusfore leaving you only one way out, that way out is the complete acceptance of your new role as a mental and physical slave to the 666 system.

How do you reclaim your God given birthright?

What do bad bad bad judges, politictians, congressmen, senators, officers, employees fear most, "being found out". How do you conqure them personally, use the great power of "embarrassment", PUT A BIG STRONG PUBLIC LIGHT ON THEIR LIES - DECEPTION - THIER UNCONSTITUTIONAL GOALS! Catch them in their lies (ENRON), then take the ant hill, and turn it into a HUGE STINKY MOUNTIAN, (something the public wants to get rid of) use three to five word sound bytes to destroy their so called "good reputation or public impression". The smaller the lie, the more easy it is for the public to understand it. If you have to explain the lie or method of deception to the public - it won't be as effective. Use absolute back and white documented proof at all times. Make the evil one feel insecure for lack of public support, "after all why should the public support a low-life lier like them". Should a judge get paid to lie or decieve the public? Should a congessman, senator, or president get paid to line his pocket with ENRON money? Should we pay for a war so corporations on the take, can steal other peoples drugs and oil? Should we pay to support a intra-government that allows the WTC disaster to take place in broad day light? Make them feel not wanted, and not important, create the public illusion that their evil time on earth has come and gone, and there is no room left for them on earth.

WE ARE NOT UN-AMERICIAN - - - - - - -

ONLY THEY THAT USE THEIR PUBLIC OFFICE TO LIE AND DECIEVE THE PUBLIC ARE UN-AMERICIAN ! ! !

AND THEY DON'T BELONG HERE IN AMERICA - THERE IS NO ROOM LEFT FOR THEM


Karl G. (Bacon) Granse . . . . the dragon slayer . . . now give me my damn sword back you guys!


 

THE STATUTORY TERM ANALYSIS (STA) METHOD

Vincent P. Tassinari*

TABLE OF CONTENTS

ABSTRACT
SYNOPSIS
INTRODUCTION
I. ELEMENTS OF A STATUTE
II. STATUTORY TERM ANALYSIS & CONSTITUTIONAL TERM ANALYSIS
     A. Patent Claim Construction
     B. Statutory Term Analysis (The STA Method)
          1. The Relevant Statute for Analysis
          2. Law Text Change from Old Law to New Law
          3. The Statute at Issue
               a. The Statute's Text Body
               b. The Statute's Preamble & Title
               c. Floor Discussions, Bills, Reports
                    i. Floor Discussions
                         (A). The President's Legislative Power
                         (B). Other Issues
                    ii. Bills
                    iii. Reports
               d. The Statute's Progression History Estoppel
               e. Extrinsic Evidence
                    i. The Role of Interest Groups in Procuring Legislation
                    ii. Existing Legislation and Judicial Analysis
                    iii. Transcripts from Committee Hearings
                    iv. How the Rules of the STA Method Work
               f. Conclusion: The Term at Issue
          4. Conclusion: The Statute at Issue
          5. Comments on the STA Method
     C. Constitutional Term Analysis (The CTA Method)
          1. Intrinsic Evidence Use
          2. Extrinsic Evidence Use
III. THE SOLUTION TO TRIER OF LAW JUDICIAL ACTIVISM
     A. Trier of Law Judicial Activism
     B. Current Solutions Are Ineffective
     C. The Three-Pronged Approach
          1. The Proposed Temporary Solution
                a. Divide the Ninth Circuit
                b. The Federal Circuit as the Additional Appellate Tier
          2. The Proposed Permanent Solution
               a. Constitutional Authority
               b. The Judicial Activist Movement
               c. The STA Method Advantage
                    i. The Judiciary Will Benefit
                    ii. The Legislature Will Benefit
                    iii. Others Will Benefit
          3. Non-Legislative Contributions
               a. Impeachment
               b. Law Students, Attorneys, & the Courts
               c. The Role of the Judiciary in Updating Statutory Law
IV. RECOMMENDATIONS

ABSTRACT

In 1986, Chief Justice Rehnquist observed that "what lawyers and litigants in our country's federal courts are seeking to know [is] the meaning of a particular [term in a statute]."1 To this end, Professor Tassinari asserts the Statutory Term Analysis (STA) Method as a useful, new, and nonobvious method of analyzing for Congress' meaning of a term in a federal statute. After thoroughly analyzing the current state of Congress' power to make all laws, judicial activism, and separation of powers, Professor Tassinari establishes that Congress is to blame for the judiciary's inability to confine itself to its assigned responsibilities by reason of Congress' failure to enact laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power.2 This is contrary to the political, economic, religious, social, intellectual, and artistic thinking of the last 211 years. To shield Congress' power to make all laws from the continued, exponential growth of the unchecked Judicial Activist Movement of the late 1930's, Professor Tassinari concludes that Congress must enact the rules of the STA Method into the Federal Rules of Evidence as a necessary and proper means for carrying into execution Congress' Article I, Section 8, Clause 18 exclusive power. In this way, the excessive power of the Supreme Court will then fill in the deficient power of Congress to balance and bring to separation, coordination, and cooperation the powers granted by the People under our Constitution to these two branches.

 

SYNOPSIS

Figure 4 and Figure 2 below are discussed separately in this article but are provided here for comparison. Figure 4 represents the current state of Congress' power to make all laws under Article I, Section 8, Clause 18. As shown in Figure 4, the trier of law implements that judge's own meaning of a term in Congress' statute by supplying factual evidence from any available information to establish the scope of the subject matter of that statutory term. This judicial activism by the trier of law is behavior that is not maintained above Article III, Section 1 "good Behaviour."3 Figure 2 shows the changes proposed by this article. As illustrated in Figure 2, the Statutory Term Analysis (STA) Method replaces the objectionable practice of trier of law judicial activism in favor of Congress supplying the factual evidence from the Congressional Record to establish the scope of the meaning of each statutory term. These proposed changes work towards vesting Congress' power to make all laws in one Congress.



Figure 2. Congress' Article I, Section 8, Clause 18 Power to Make All Laws

INTRODUCTION

In April, 1997, I began writing a law review article concerning the amount of statutory compensation a holder of an invention patent was entitled to under the federal patent infringement compensation statute 35 U.S.C. § 284.4 Several clues indicated that the practice of law in the courts regarding this statute was inconsistent with the law enacted by Congress. In other words, there were several indications that the courts were not complying with Congress' statutory law. For example, in one paragraph of an issued opinion, the court correctly pointed out that § 284 expressly stated that a "reasonable royalty" is a floor measurement below which no award could fall, rather than an amount to be awarded. In the next paragraph of that same opinion, however, the court contradicted its "floor" statement and actually award a reasonable royalty. Another clue was that the courts treated Congress' statutory law as common law to derive support from the common law of contracts for the courts' conclusions as to the federal tort of patent infringement. The strongest clue was that the term "lost profits" was routinely used in §284 court opinions, even though that term did not appear in the text of 35 U.S.C. § 284.

In developing the resulting article titled Patent Compensation Under 35 U.S.C. § 284 (hereinafter "Patent Compensation"),5 I faced the same problem that courts have routinely faced since Congress' declared our Constitution in effect in 1789: determining the meaning of terms in a statute through the use of an appropriate analytical tool. Regarding such an analytical tool, Justice Frankfurter observed in 1947 that:

No matter how one states the problem of statutory construction, for me at least it does not carry its own answer. Though my business throughout most of my professional life has been with statutes, I come to you empty-handed. I bring no answers. I suspect the answers to the problems of an art are in its exercise. Not that one does not inherit, if one is capable of receiving it, the wisdom of the wise. But I confess unashamedly that I do not get much nourishment from books on statutory construction, and I say this after freshly reexamining them all, scores of them.6

Judge Posner of the Seventh Circuit noted in 1983 that:

It has been almost fifty years since James Landis complained that academic lawyers did not study legislation in a scientific (i.e., rigorous, systematic) spirit, and the situation is unchanged. There are countless studies, many of high distinction, of particular statutes, but they are not guided by any overall theory of legislation, and most academic lawyers, like most judges and practicing lawyers, would consider it otiose, impractical, and pretentious to try to develop one. No one has ever done for legislation what Holmes did for the common law.7

Moreover, Justice Scalia came to a similar conclusion five years later:

I am left with a sense of dissatisfaction, as I am sure you are, that a discourse concerning what one would suppose to be a rather fundamental-indeed, the most fundamental-aspect of constitutional theory and practice should end so inconclusively. But it should come as no surprise. We do not yet have an agreed-upon theory for interpreting statutes, either. I find it perhaps too laudatory to say that this is the genius of the common law system; but it is at least its nature.8

During the summer of 1996, while writing an amicus brief to the Supreme Court on the equitable tolling of the federal income tax refund statute 26 U.S.C. § 6511,9 I discovered that there is no overall analytical theory of legislation. Since no one had developed an appropriate statutory term analysis tool in the 210 years following the 1787 Constitutional Convention, I created the Statutory Term Analysis Method (hereinafter "STA Method") during the summer of 1997 and applied this powerful analytical tool to the terms in 35 U.S.C. § 284. In doing so, I was able to show that, through the Patent Act of 1946, Congress enacted into law the authority and responsibility for the courts to award patent compensation as the wrongdoer's gross income less fixed costs, irrespective of the plaintiff's economic capacity.10 This conclusion is contrary to the patent reasonable royalty practice of every federal court since 1964.

During the thirty-four years since 1964, individual inventors and small businesses have lost millions of dollars in patent infringement compensation, contrary to Congress' meaning of the terms in 35 U.S.C. § 284, whereas large corporations have remained unaffected by this practice of patent law in the federal courts. The burden of this huge disparity between Congress' statutory award scheme for the strict liability tort of patent infringement and the economic capacity award practice of the federal courts under what is essentially the common law of contracts, fell on the shoulders of plaintiffs who were poor, whereas the rich received the compensation authorized by Congress under § 284. This begs the question of why the courts have favored rich, large corporations in patent infringement cases and discriminated against individual inventors and small businesses, contrary to the law enacted by Congress. The answers that I found through my analysis in Patent Compensation were disturbing. I traced the economic capacity distinction to obiter dictum in the 1964 Supreme Court case of Aro Manufacturing v. Convertible Top Replacement Co. (hereinafter "Aro II").11 Through egregious trier of law judicial activism, Justice Brennan and three other Justices subverted the Constitution by usurping Congress' vested power to make all laws to gut the meanings of the terms in Congress' patent law and judicially enacting their own meanings for Congress' statutory terms.12 This behavior of the four Justices in Aro II caused devastating effects on court opinions and the rule of law, on litigants who sought and continue to seek justice, on Congress, and on the entire judicial system.13

In researching Patent Compensation, I concluded that trier of law judicial activism was not endemic to the Aro II case or even to patent law, but pandemic to all federal law. Thus, the primary purpose of this article is to convince Congress to enact the rules of the STA Method into the Federal Rules of Evidence as a means of rebalancing the powers between the Legislative Branch and Judicial Branch, consistent with Congress' vested power to make all laws under Article I, Section 8, Clause 18. In Part I, I classify the elements that make up a statute and characterize the difficult task of analyzing Congress' meaning of a term in a statute. Part II provides the justifications for the rules of the STA Method. Since the rules of the STA Method will also work for terms found in the Constitution, Part II provides justifications for the rules of the Constitutional Term Analysis Method (hereinafter the "CTA Method"). Part III discusses judicial activism, separation of powers, and the current solutions being implemented to combat judicial activism. Part III continues on to offer a three pronged approach led by the rules of the STA Method as the solution to the serious, separation of powers' problem caused by those involved in the Judicial Activist Movement. Part IV contains a compilation of ten recommendations for Congress. The main recommendation being enacting the rules of the STA Method into the Federal Rules of Evidence.

 

I. ELEMENTS OF A STATUTE

A federal statute is a group of written terms tangibly fixed as a unit in a government issued document specifying the subject matter that the Constitution, through Congress as a whole body, regards as the claimed law. A statute may contain more than one unit, and each unit may be regarded as a law in and of itself. For example, in the fictional statute 99 U.S.C. § 201, assume that section 201(a) sets out the requirements for liability and section 201(b) sets out the requirements for remedy. Here, section 201(a) may be regarded as one law and section 201(b) may be regarded as the second law within the same statute. The seven articles and twenty-seven amendments of the Federal Constitution may also be delineated in a similar way.

Regarding a specific unit identified as a law such as section 201(a) mentioned above, each law is comprised of one or more terms. Moreover, the terms that make up that law may contain one or more words. Where a term contains more than one word, each word of the phrase may be regarded as a term in and of itself. For example, if section 201(a) contained the term phrase "deadly weapon," there would be three terms to this term phrase: (i) weapon; (ii) deadly; and (iii) deadly weapon. Each of these three terms has its own meaning. That meaning is comprised of subject matter of a finite scope. In other words, meaning = subject matter + scope of subject matter. In the case of the term "deadly weapon", the matter and scope of the terms "weapon" and "deadly" contribute to the matter and scope of the third term, "deadly weapon."

In court, the matter and scope of a statutory term are dependent on the context of the factual issues brought before the court by the litigants. The context of the litigant factual issues brought before the court is what comprises a case or controversy as required by the Constitution.14 Thus, limited by the context of these litigant facts, the trier of law must analyze the relevant and timely legislative factual evidence to conclude as to the matter and scope of each term at issue. For example, assume that the only term at issue before the court is the term "deadly weapon" in the above fictional law section 201(a). Here, the overall duty of the trier of law is to determine whether the litigant's factual issues are within, or outside of (i.e., without), either (A) the matter or (B) the scope the term "deadly weapon."

Under Boolean logic, there are four possible outcomes to the propositions of whether the litigant's factual issues are within or without either (A) the matter or (B) the scope. That is, the four possible propositions are: (1) within the matter and within the scope; (2) without the matter, but within the scope; (3) within the matter, but without the scope; and (4) without the matter and without the scope. The relationship among four propositions and the four possible outcomes can be made explicit through the use of a diagram called a truth table.



 

Proposition Matter (A) Scope (B) A B A & B Possible Outcome Defense
(1) Within Within T T T Liable/Guilty Affirmative
(2) Without Within F T F Not Liable Prima Facie
(3) Within Without T F F Not Liable Prima Facie
(4) Without Without F F F Not Liable Prima Facie

Figure 1. Conjunction Truth Table for Term at Issue

Under Boolean logic, Figure 1 above represents what is called a conjunction (A & B). Only in Proposition (1) circumstances, where the litigant's factual issues are within both (A) the matter and (B) the scope of the term at issue, can the defendant ultimately be found liable or guilty, as the case may be. In the other three propositions, the defendant retains its property or liberty since the litigant's factual issues are without either the matter or the scope or both the matter and the scope. Regarding the defenses, affirmative defenses arise under Proposition (1) whereas prima facie defenses arise under Propositions (2) through (4).

Figure 2 below is a schematic of Congress' power to make all laws under Article I, Section 8, Clause 18. The role played by the Congress, the President, and the Judiciary in legislation is directed by the Constitution and is illustrated in Figure 2. Regarding Congress' role, the Constitution directs Congress to establish the legislative factual evidence and Federal Rules of Evidence concerning this legislative factual evidence,15 each playing a part in the matter and scope of the subject matter of a statutory term. These are shown labeled as "The STA Method" in Figure 2. As discussed later in this article, Congress has never implemented into practice these two structural pieces of Congress' power to make all laws. To this end, the proposed STA Method bridges the existing gaps from Congress directly to the legislative factual evidence and indirectly to the legislative factual evidence. Once enacted into the Federal Rules of Evidence, the Rules of the STA Method will vest in practice the power to make all laws in one Congress.

Figure 2. Congress' Article I, Section 8, Clause 18 Power to Make All Laws

Typically, statutory law is comprised of several statutory terms, each term having a unique meaning. Figure 2 above shows three statutory term/statutory term meaning combinations. More than three such combinations exist and are represented in Figure 2 by ". . ."-the ellipsis mark. Typically, only one statutory term/meaning combination will be at issue during a courtroom trial. For each statutory term/meaning combination, Congress supplies the legislative factual evidence for both the subject matter and the scope of that subject matter. The matter is established in the text of the statute. Moreover, for reasons discussed in Part II of this article, the scope of this matter is set out by Congress as a whole in the Congressional Record as floor discussions, bills, and reports.

At the end of the floor discussions, Congress may vote to pass a bill into law. After a successful vote, the bill is presented to the President. As shown in the upper left-hand corner of Figure 2, the President asserts the President's power to sign this bill into statutory law or return and object (i.e., go/no go power) as the President so chooses.

Litigants generate litigant facts through their behavior. Where these facts generate a legal dispute over the meaning of a term in a federal statute, the entire concern may be brought to court. In court, the trier of law applies analytical labor to determine Congress' meaning of the term at issue, subject to the Federal Rules of Evidence and as limited by the litigant factual evidence. Note that as directed by the Federal Rules of Evidence, the matter and scope of a statutory term as well as the litigant factual evidence are tested by the trier of law against a particular level of assuredness (e.g. preponderance, clear and convincing, etc.). The level of assuredness varies according to what the trier of law applies it against. In any case, determining Congress' meaning of a statutory term is the exclusive realm of the trier of law despite any mixed fact/law issues that may arise.16

Assume that the litigant's behavior brought into legal issue the meaning of the term "deadly weapon" from the fictional statute section 201(a). Establishing to a specific level of certainty whether the litigant's factual issues are within or without either (A) the matter or (B) the scope of the section 201(a) term "deadly weapon" is a difficult task for the trier of law. The task is made even more difficult since the matter and scope of the term "deadly weapon" in the fictional statute are substantially dependent upon the matter and scope of the term "weapon" and the matter and scope of the modifying term "deadly." Thus, before even getting to the overall duty of determining whether the litigant's factual issues are within or without either the matter or the scope of the term "deadly weapon," the trier of law must analyze the relevant legislative factual evidence to determine the matter and the scope of the term "weapon", then the term "deadly", and then the term "deadly weapon." Note that each of these terms are limited by the context of the litigant factual issues brought before the court by the litigants.

The good news is that even without knowing the extent of the theoretical scope of a term in Congress' statute, a court still may conclude as to whether the litigant's facts fall within or without the theoretical scope. Moreover, once this primary legislative analysis is done properly for a set of litigant facts by a court, federal agency, or even within a law review article, the meaning of that term will be expressly known for that set of litigant facts. Falling within or without the overall theoretical scope is represented in Figure 3 below.

Figure 3. Theoretical and Analyzed Scope of the Matter of a Statutory Term

As shown in Figure 3, both Analyzed Scope #1 and Analyzed Scope #2 fall within the matter and theoretical scope of the particular statutory term at issue. The overall theoretical legal scope is shown in dashed lines because the overall theoretical scope can never be completely known. Analyzed Scope #3, as shown, falls outside at least the overall theoretical scope, if not the matter, of the particular statutory term at issue. With Analyzed Scope #4 partially outside of the overall theoretical scope, no liability can be maintained and thus Analyzed Scope #4 is deemed outside the overall theoretical scope of the particular term at issue. Analyzed Scope #5 is shown within the overall theoretical scope having some litigant facts in common with Analyzed Scope #2. Other scope scenarios are possible.

Each analyzed scope represents cases with unique facts. As each analyzed scope of a particular term in Congress' law becomes revealed, subsequent courts then need only cite to the relevant, primary analysis of that judge, executive branch employee, or author to support that subsequent court's conclusion regarding that term. Where the primary analysis is binding precedent, the subsequent court will adhere to the principle of law under the Doctrine of Precedent Adherence (in the dead language of Latin, Doctrine of Stare Decisis). Where the primary analysis is not binding precedent, the court may adopt the principle of law under the Doctrine of Precedent Adoption (in the dead language of Latin, Doctrine of Quieta Non Movere). Under either Doctrine, the subsequent court is exercising its lawful authority rather than impermissibly deferring to another court, federal agency, or law review author.17

Over time, each new analyzed scope may fill in the space within the overall theoretical scope. It is important to note, however, that since the courts are restricted by the case or controversy requirement to the factual issues before it, Congress' overall theoretical scope of the subject matter of a particular statutory term will most likely never be brought out over time by the courts. Thus, the overall theoretical scope is shown in dashed lines. Just as important, there is insufficient justification for a court to expressly identify and rule on the overall theoretical scope of a statutory term since Congress' statutes regulate behavior in fact, not behavior in the abstract.

What I have been discussing above is intangible; that is to say, it cannot be touched by the human hand. Real property and personal property can be touched and, thus, quantified by human hands. In contrast, law is equivalent to intellectual property in that both are intangible properties of the mind. As property of the mind, there is no tangible item by which to quantify the theoretical scope of a meaning of a term in Congress' law. Although Congress' agreed upon ideas of regulating behavior are tangibly embodied in a federal document, the overall theoretical scope of these agreed upon ideas is not susceptible to quantification in the abstract. It is because the overall theoretical scope of these agreed upon ideas is not susceptible to quantification in the abstract that the Article III, Section 2, Clause 2 "case or controversy" requirement restricts the matter and scope of a statutory term to the context of the factual issues brought before the court by the litigants. This explains why the case or controversy requirement was placed into our Federal Constitution by the founders of the United States.

In short, the good news is that our Constitution as it currently exists, is sufficient for permitting judges to analyze the terms within one of Congress' statutes. Now for the bad news. The judicial duty of analyzing the terms within Congress' statute is hard work. This duty actually requires the litigants and ultimately the trier of law to analyze the relevant and timely Congressional Record entries that make up the entire realm of the legislative factual evidence. These Congressional Record entries are made over many months (sometimes years), are designed for political persuasion, not legal persuasion, and are generally numerous. Although our Government by Constitution delegates the burden of proving a legal proposition to the litigants who come before the court, the judge always retains the responsibility of ensuring that the proofs set out in the court's written opinion meet the legal certainty necessary to support its conclusion. Thus, even where the litigants get away with "slacking" in their professional responsibility to their clients and the court, the court cannot avoid its responsibility and must support its conclusions through cogent analysis as published in a written opinion.

The time it takes for a federal judge to analytically address each applicable Congressional Record entry is in direct conflict with that judge's duty to process the court's docket in a timely fashion. These docket pressures, as well as other pressures faced by a federal judge, are sometimes so great that the trier of law's human nature overcomes the trier of law's self-restraint. Where the judge's human nature predominates over self-restraint, a particular judge avoids the hard work of actual judging and instead implements the judge's own meaning of a term in a statute, even though such behavior falls below the particular level of good behavior established under Article III, Section I of the Federal Constitution.18 Where a judge implements that judge's own meaning of a term in a statute, that trier of law is referred to as a judicial activist, whose behavior is judicial activism.

The rules of the STA Method can be used to shield Congress' power to make all laws from trier of law judicial activism as the rules work toward rebalancing the powers between Congress and the Judiciary. In order to come to agreement that the rules of the STA Method must be enacted into the Federal Rules of Evidence to shield Congress' power to make all laws, it is first important to understand what these rules are and how they interplay with the structure of our Government. Part II and Part III address these areas, respectively.

 

II. STATUTORY TERM ANALYSIS & CONSTITUTIONAL TERM ANALYSIS

Determining whether Congress as a whole reasonably gave a statutory term a different and particular meaning from that term's ordinary and reasonable meaning requires structured analysis. By loose analogy to the arcane area of patent claim construction, this article asserts a useful, new, and nonobvious method of Statutory Term Analysis (STA) and a useful, new, and nonobvious method of Constitutional Term Analysis (CTA), both of which may be used in all bodies of law.19

 

A. Patent Claim Construction

A patent claim is a group of written terms tangibly fixed as a unit in a government issued document specifying the subject matter that the inventor regards as the claimed invention.20 Patent law revolves around patent claim term analysis (in patent law nomenclature "claim construction"). Every patent claim term within each issued patent must be construed in all cases because it is only possible to determine whether the accused matter reasonably falls within the claim's scope by construing the claim's terms. Similar to the legislative representative's meaning of a statutory term or Constitutional term, a patent claim term at issue must be construed by considering the inventor's meaning of that claim term as expressed through the undisputed, timely and relevant public record.21 In the case of a patent claim term, the undisputed public records that may properly be used for term analysis comprise (1) the patent specification with its (a) claims and (b) written description and (2) the in-evidence patent file history which contains "the complete record of all the proceedings before the Patent and Trademark Office"22 by the inventor or the inventor's agent. Since the patent specification and in-evidence patent file history is evidence that is intrinsic to the meaning of a term in a patent claim, it is "always necessary to review the specifications to determine whether the inventor has used any terms in a manner inconsistent with their ordinary [and reasonable] meaning."23

Patent claim construction is a critical and recurring problem for every patent system participant.24 In the same way that Congress drafts a law, patent attorneys draft a patent claim to cover future issues for which they have no way of presently conceiving. In the same way defense lawyers attempt to show that their client's behavior falls outside the matter or scope of a term in a law drafted by Congress, patent defense lawyers attempt to show that their client's product or process falls outside the matter or scope of a patent claim drafted by a patent prosecution attorney. With the future unknown and the imagination of the inventors of products and processes unlimited, the need for theoretical legitimacy in patent claim construction is paramount.

Taking this need for theoretical legitimacy seriously, the United States Court of Appeals for the Federal Circuit25 responded by developing the most comprehensive set of structured term analysis rules for any body of law. The Federal Circuit's structured term analysis rules formed the basis for the Statutory Term Analysis rules and Constitutional Term Analysis rules set out below.

 

B. Statutory Term Analysis (The STA Method)

The Statutory Term Analysis Method (hereinafter the "STA Method") is the analytical method of determining Congress', as a whole body (hereinafter "the body Congress"), meaning of a statutory term at issue. The STA Method complies with the Constitution's mandate that vests power to make all laws in one Congress while maintaining the balance between the judiciary's independence from politics and the judiciary's accountability to Congress for extrajudicial actions. It is important to note that, unlike other methods such as constitutional interpretation or statutory interpretation, the STA Method focuses on analysis and not on the document containing the term to be analyzed. Moreover, the STA Method focuses on the term to be analyzed rather than the method of analysis, such as in originalism and textualism (adumbrative, outlined analytical methods for which this article supplies the specific analytical rules); or the Judiciary-end-run-around-Congress-and-the-Constitution-dynamism model (corrupting analytical method in response to which this article seeks to shift Congress' usurped power to make all laws from the unelected judiciary back to the elected members of Congress).

Eisegesis is the method of analyzing the terms of a text by sneaking in one's own meaning as the author's meaning. For example, the court in Simmons v. Prudential Insurance Company of America26 stated that if it "were to allow extra-contractual or punitive relief to be implied in [ERISA 29 U.S.C.] § 1104, it would be reading meaning into a statute instead of studying [the C]ongressional [Record] to determine meaning reposed in the statute. It is the difference between eisegesis in the former exercise and exegesis in the latter."27 However, the purpose of statutory term analysis by the trier of law is to ascertain the body Congress' meaning of a term in a statute.28 Thus, "every consideration brought to bear for the solution of that problem must be devoted to that end alone."29 To address these considerations, the rules of the STA Method are centered around Article I, Section 5, Clause 3 of the Constitution. This Clause mandates that "[e]ach House shall keep a Journal of its Proceedings, and from time to time publish the same."30 This Congressional Journal has had a total of four titles: Annals of Congress (1789-1824); Register of Debates in Congress (1824-1837); Congressional Globe (1837-1873); and Congressional Record (1873 to present). Under the STA Method, the entire realm of evidence regarding a term at issue is first divided into two categories concerning the Congressional Record. Rules of analysis are then set out regarding these two categories. Each category is then divided into subcategories with rules of analysis set out for each subcategory. Below are the rules of the STA Method.

In determining the body Congress' meaning of a statutory term at issue under the rules of the STA Method, there are only two sources of guidance: intrinsic evidence and extrinsic evidence. Intrinsic evidence is that evidence from the Congressional Record that is internal to body Congress' meaning of a statutory term. As stated by the Court in 1982:

It is not the function of this Court . . . to apply the finishing touches needed to perfect legislation. Our job does not extend beyond attempting to fathom what it is that Congress produced, blemished as the Court may perceive that creation to be. Our task is solely to give effect to the [meanings], as best they can be determined, of the [terms] . . . that [Congress] enacted [in] the legislation. Absent compelling evidence requiring a contrary conclusion, the best indication of Congress' [meaning of a term] is Congress' own language.31

Contrary to Justice Holmes' assertion that lawyers do not identify issues and rules by which to analyze and conclude, analyzing all useful documents is the only way to derive what Justice Holmes called the "felt meaning"32 of a term in a statute. This intrinsic evidence is exclusively comprised of the relevant Congressional Record entries that were both presented on the floor of Congress and in existence at any time before the enactment date of the statute. This will be evidenced by that entry being applicably set out in the Congressional Record. The intrinsic evidence comprises the entire realm of established legislative facts and the trier of law is to expressly address and analyze each intrinsic fact; colloquially, to take friendship with all the intrinsic evidence. Importantly, this relevant intrinsic evidence is not restricted to any timely session of Congress, although the date of the timely session may affect the evidentiary weight of the intrinsic item.

Requiring the use of timely legislative factual evidence makes sense. Permitting the Judicial Branch to use evidence that came into existence after the enactment date of the statute diminishes Congress' law into nothing more than an abstract proposal with which the Judiciary may do as it pleases ex post facto. Moreover, as explained in United States v. American-Foreign S.S. Corp.,33 "[l]aws are not abstract propositions. They are expressions of policy arising out of specific situations and addressed to the attainment of particular ends."34 There is little doubt that words do grow from their roots, whose linguistic meanings may and often do change over time. In fact, outside the context of law, a continuous path from established meaning to changed meaning should be taken over time for definitions within linguistic dictionaries. However, where Congress captures these words into law as terms in a statute at some point in time along this path, the legal meaning of each term is established by Congress as the law of the land as of the enactment date of that statute. Thus, in the context of Congress' law, words used as statutory terms indeed are omiom words, that is, words in which "Original Meaning Is the Only Meaning."35 To this end, a time-established linguistic meaning becomes a legal meaning only when Congress elevates that linguistic meaning to law through Congress' power to make all laws under Article I, Section 8, Clause 18.

Extrinsic evidence is that evidence that is external to the body Congress' meaning of a statutory term. More specifically, extrinsic evidence is comprised of the relevant document evidence that was not applicably set out in the Congressional Record, but was in existence at any time before the enactment date of the statute.36 This relevant extrinsic evidence is not restricted to any timely source, although the relevant and timely source may affect the evidentiary weight of the extrinsic item.

In determining the body Congress' meaning of a term at issue in a statute, the intrinsic evidence is always analyzed first. That is, intrinsic evidence is always analyzed before extrinsic evidence under the rules of the STA Method. The rationale for this is that the intrinsic evidence was applicably set out in the Congressional Record and thus represents the most significant source for the body Congress' meaning of a term at issue.

 

1. The Relevant Statute for Analysis

To begin the four part statutory term analysis, it is critical that the relevant statute is selected for the analysis. A statute may be the relevant statute if the term at issue first appeared in that statute, regardless of the form Congress used to express the term at issue.

 

2. Law Text Change from Old Law to New Law

In analyzing the intrinsic evidence under the STA Method, the relevant statutory text change from the old law to the new law is set out as the second part of the STA Method. As Justice Frankfurter stated, "[t]hough we may not end with the words in construing a disputed statut[ory term], one certainly begins there."37 This intrinsic evidence is then analyzed to draw proper conclusions from the facial change in the text and to dispel any improperly drawn conclusions. Where there is no old statutory law, this STA Method step does not apply to the analysis.

 

3. The Statute at Issue

With the relevant statute for analysis selected and the change from the old law to the new law analyzed, the third part of the STA Method is to identify the terms in the statute that the litigants have taken before the court38 and then analyze these terms.

The main analytical construct to the rules of the STA Method is set out as follows:

The Different & Particular Meaning Rule

With the terms at issue identified, each term at issue is given Congress' expressed statutory definition for that term. However, where Congress does not make an expressed statutory definition for a term at issue, the body Congress is assumed to have given that term its ordinary and reasonable meaning unless the body Congress reasonably gave that term a meaning that is different and particular from that term's assumed ordinary and reasonable meaning. Where the body Congress has not in fact given that tern an ordinary and reasonable meaning or a different and particular meaning, the law is to be voided by the courts.

Congress enacts laws to cause effects, regardless of whether the Judiciary can discern a purpose for Congress' actions. In other words, Sovereign power is exercised to cause results, whether the trier of law extrajudicially classifies the results as foreseeable or unforeseeable, harsh or benevolent, knowable or unknowable. Thus, the Different & Particular Meaning rule supplants any remaining use of the "representational" model, "fundamental aspirational" theory, the "reasonable purpose" rule, the "congressional intent" rule, "public choice" theory, "ascribed purpose" rule, "conservative revisionism," "liberal revisionism," "cannons of interpretation," the "clear statement" model, the "attribution of purpose" approach, "human dignity" theory, the "balancing test," "the plain meaning" rule, "economic liberty" theory, "interest group" theory, "natural law" theory, "pluralism" theory, "imaginative reconstruction" theory, "totality of the circumstances" test, or other like concepts as applied to the body Congress' meaning of a statutory term since these theories are currently used to aggrandize the Judiciary and enable that branch to create the appearance that judicial decisions are constrained. Although it is true that, under any analytical method, "the irresponsible judge will twist any approach to yield the outcomes that he desires and the stupid judge will do the same thing unconsciously,"39 the STA Method is distinguished from all other approaches in that the rules of STA Method prevent a judge from creating the appearance that twisted judicial outcomes are constrained. Under the STA Method, twisted judicial outcomes stand out as a beacon that signals to Congress to gear up Congress' Article I persuasion powers over mumpsimic judicial activists.

Analyzing a term at issue under part three of the four part rules of STA Method is a six step process. However, the inconsistent language used by Congress in statutes to reference the same term creates a minor issue that nonetheless must be analytically addressed at the outset. As Judge Posner observed, "a statute that is the product of compromise may contain redundant language as a byproduct of the strains of the negotiating process."40 Thus, each possible manifestation of the term at issue within the statute is to be set out and analyzed to determine whether that manifestation analytically subsumes the other manifestations, is analytically merged into the other manifestations, or is found not relevant concerning the term at issue so that only one term at issue remains.41 The body Congress' meaning of this one remaining term at issue is then derived through the six steps of analyzing Congress' specification of the law. The six steps are titled: a. The Statute's Text Body; b. The Statute's Preamble & Title; c. Floor Discussions, Bills, Reports; d. The Statute's Progression History Estoppel; e. Extrinsic Evidence; f. Conclusion: the Term at Issue.

 

a. The Statute's Text Body

Where a term at issue is defined expressly in the statute, it is improper to give any weight to further evidence, either intrinsic or extrinsic, to alter the body Congress' definition of that term.42 The reason for this is that the text of a statute is clear only where a term at issue is defined expressly in the statute. This express definition gives due weight to the facility with words that has been developed by legislators since the founding of the United States.

In just about all cases, however, the body Congress' meaning of a statutory term cannot be determined without going beyond the statute itself and into the Congressional Record. This limitation on written language is the direct result of what Justice Frankfurter refers to as the inexactitude of words in his 1947 article, Some Reflections on the Reading of Statutes.43 In his article, Justice Frankfurter notes that since words are symbols of meaning with shifting variables, the configuration of words by Congress into statutory terms-themselves symbols of meaning-"can hardly achieve invariant meaning or assured definiteness."44

The People of the United States recognized this inexactitude of words at the founding of our Country and provided a two-pronged approach in the Constitution to overcome this problem. The first prong was the interdependency of Congress, the Congressional Record, and Congress' rules regarding the Congressional Record. The second prong was the decision to form an independent Judiciary as the third branch of our Government.

Recall that meaning = subject matter + scope of subject matter. For the first prong of the two pronged approach, it is important to reiterate that a statute or division thereof is a group of written terms tangibly fixed as a unit in a government issued document specifying the subject matter that the Constitution, through the body Congress, regards as the claimed law. Moreover, making a law entails both making the terms of the law and making the meaning of the terms of the law. As part of its vested power to make the terms of all laws, Congress is the branch with the exclusive Constitutional power to make the meaning of the terms in the law.45 To this end, Congress may be its own lexicographer and need not use conventional terminology. As Judge Mikva put it, "Congress is like Humpty Dumpty in Through the Looking Glass. When Congress uses a word, the word means what Congress says it means, all the dictionary definitions to the contrary notwithstanding."46

It is also important to note that Congress may give subject matter or scope of that subject matter to the terms in a statute through any means necessary and proper for carrying the terms of that law into execution.47 Pursuant to this, Congress establishes the subject matter portion of the meaning of a statutory term within the text of the statute. However, as a result of the inexactitude of words, a statutory term has a meaning that is not usually subject to a cogent, statutory definition. This limitation on language prevents Congress from supplying both the matter and scope of each statutory term within the text of the statute. In other words, this limitation on language demands that Congress leave as facially or textually ambiguous the scope of most terms in a statute. Thus, as a necessary means of giving meaning to these delphic terms of the law, Article I of the Constitution authorizes Congress to use the Section 5, Clause 3 Congressional Record to establish the scope of the subject matter of a term in a statute.48 Moreover, Article I authorizes Congress to use the Congressional Record as a proper means of giving scope to the terms in the law, since the Section 5, Clause 3 Congressional Record is a Journal that may neither be changed nor altered once published and disseminated to the public.

In the 1983 case of Immigration and Naturalization Service v. Chadha,49 the Court observed that "[t]he division of Congress into two distinctive bodies assures that the legislative power [is] exercised only after opportunity for full study and debate."50 Thus, Congress' necessary and proper use of the Congressional Record to establish the scope of the matter of the terms in a statute is subject only to the rules of its proceedings under Article I, Section 5, Clause 2.51 The rules of Congress' proceedings are, of course, subject to scrutiny by the Judiciary as the necessary check to balance Congress' legislative power. Merely because the Judiciary might be inconvenienced, have to work harder or put more effort into analyzing each of the relevant and timely Congressional Record entries to conclude what the body Congress' meaning of a statutory term is, does not make Congress' use of the Congressional Record unnecessary or improper under the Constitution. Such an analytical conclusion by the Judiciary of Congress' law making right under Article I, Section 8, Clause 18 would disparage the people's right to vest their entire legislative power into the capable hands of their chosen representatives. Thus, the Constitution designed the necessary and purposeful facial ambiguities of the scope of most statutory terms for future unfolding through judicial analysis of the intrinsic evidence of the Congressional Record.52

This leads to the second prong authorized by the Constitution to overcome the inexactitude of words. With the scope of most terms in a statute set out in the Congressional Record rather than solely in the text of a statute, the people of the United States needed a hard working, intelligent group, independent of the now completed legislative process, to do the bulk of the "unfolding" analytical work. Thus, as the second prong, the Constitution delegates the authority and responsibility of performing this mundane, but vital task of analysis to an independent Judiciary as the third branch of our Government.53 In other words, without the analytical labor of the Judicial Branch, "the effectiveness and rationality of congressional commands are inevitably eviscerated."54 Thus, the ambiguity in the body Congress' meaning of a statutory term does not represent a failure of the legislative process, as is so often the conclusion of living constitutionalists, but rather, the ambiguity flows from the inexactitude of words that in turn gives rise to the need for a third branch of government to act as a referee55 in conflicts among the groups consisting of the people, the President, Congress, the States, the Judiciary, and those periodically subject to the United States Constitution.

An ambiguous meaning of a statutory term requires an inference of law by the trier of law. For an inference of law, a process of logic and reason-an illation-must be made in writing by a judge before concluding, as a matter of law, what the body Congress' meaning of a statutory term is. This dianoetic process entails applying the established legislative facts to the disputed term in the statute according to the rules of the STA Method in light of the issues of the litigants before the court. However, inconsequent illations from improper inception of the instituted information. To prevent inconsequent, the intrinsic evidence comprises the entire realm of established legislative facts and the trier of law is to expressly address and analyze each intrinsic fact; colloquially, "to take friendship" with all the intrinsic evidence.

The Judiciary's relationship to federal statutes is the same as the construction worker's relationship to architectural blueprints: both have the duty to implement the architect's meaning of the terms in that document. Moreover, the legislative expression of one thing may or may not be the legal exclusion of the other. Thus, where a statutory term requires an inference of law, the judge is bound by oath of office56 and the duty set out in Marbury v. Madison57 to analyze the statute's terms and their legislative specification- weighing all the relevant and timely legislative facts, not just some-before drawing any conclusion as a matter of law. In short, whenever the court must make an inference of law regarding a statutory term, the trier of law must proceed through the entire STA Method. To help litigants and the trier of law to locate all of the timely and relevant intrinsic evidence concerning an enacted bill, I recommend that Congress publish a list of Congressional Record page citations that correspond to the intrinsic evidence of an enacted bill as defined by the rules of the STA Method.58

The required level of legislative clarity is relatively low for the trier of law to conclude that the intrinsic evidence is necessarily clear as to support one legislative proposition over another. From his study of legislation, Justice Frankfurter concluded that legislative materials need only demonstrate with reasonable clarity that Congress has in fact used a private code, so that what appears to be violence to language is merely respect to special usage of a more probable meaning.59 In BFP v. Resolution Trust Corp.,60 the Court found that "those charged with the duty of legislating [need only be] reasonably explicit."61

Given the adiaphorous, winner and loser nature of the legislative process, this preponderance level of proof makes sense. Our system of government is not an isocracy; that is, ours is not a system in which everybody has equal political power. Ours is a government by written Constitution where the governed control the government. Elected representatives serve so long as they meet the "basic human or societal needs"62 of the American People who make up the ever-changing political majority. As James Madison wrote, "[the government's] dependence on the people is, no doubt, the primary control on the government."63 There will be political winners. There will be political losers. The dividing point between political winners and political losers is the political majority, whose superiority in Congress needs only to be outweighing under our Government by Constitution. To effectuate this outweighing, an analysis of the intrinsic evidence alone need only reasonably determine the body Congress' meaning of a statutory term for a court to conclude that the intrinsic evidence is necessarily clear in the support of one legislative proposition over another.

In light of the above discussion, the STA Method rule include the following. Where a term at issue is not expressly defined in the statute itself, the term at issue is deemed a disputed term. Under such circumstances, Justice Frankfurter advised the trier of law to assumed that "Congress uses common words in their popular meaning, as used in the common speech of men."64 Thus, where the term at issue is a disputed term, the body Congress is assumed to have given that term its ordinary and reasonable meaning as of the enactment date of the statute. However, Justice Frankfurter also advised cryptically that "if a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it."65 Thus, if the body Congress reasonably gave the disputed term a different and particular meaning from the disputed term's assumed ordinary and reasonable meaning, then the different and particular meaning controls. In other words, the key issue in just about all cases is whether the body Congress reasonably gave the disputed term a different and particular meaning from the disputed term's assumed ordinary and reasonable meaning.

Where the body Congress has not reasonable given that term a different and particular meaning, it is important to go back and challenge the assumption that Congress gave that term and ordinary and reasonable meaning. If, after analyzing the relevant and timely legislative factual evidence from the Congressional Record, the conclusion is that Congress did not reasonably give that term an ordinary and reasonable meaning, the law is to be voided by the courts, not judicially reenacted thought extrinsic evidence. In other works, where the Congressional Record reasonable does not contain the necessary and proper written description of the scope of the subject matter of the term at issue, the law is to be voided by the courts, not judicially reenacted thought extrinsic evidence. Circumstances where Congress neither gave the term at issue a different and particular meaning or an ordinary and reasonable meaning may include amendments to bills for which the floor discussion is insufficient or nonexistent.

As one heuristic technique for beginning the analysis under the STA Method, the relevant and timely extrinsic evidence may be consulted to arrive at the body Congress' assumed ordinary and reasonable meaning of the disputed term. For example, the Court in Nix v. Hedden66 addressed whether a tomato was within the scope of the subject matter of the term "fruit" or the term "vegetable" by stating that "[o]f that [linguistic] meaning the court is bound to take judicial notice, as it does in regard to all words in our own tongue; and upon such a question dictionaries are admitted, not as [intrinsic] evidence, but only as aids to the memory and understanding of the court."67 Thus, although relevant and timely extrinsic evidence may be consulted to arrive at this initial meaning, the body Congress' meaning for the disputed term, as determined under the STA Method, commutes for the assumed meaning initially taken from the intrinsic or extrinsic evidence.

 

b. The Statute's Preamble & Title

The relevant parts of the preamble and title to the Act are next analyzed as the second step in part three of the STA Method. Chief Justice Marshall struck early at the notion that the title to an Act carries no weight as a legislative fact by remarking in his common sense fashion that, where the trier of law analyzes for the body Congress' meaning of a statutory term, that judge "seizes every thing from which aid can be derived; and in such case the title claims a degree of notice, and will have its due share of consideration."68 Moreover, Justice Cardozo observed that "the meaning of a statut[ory term] is to be looked for, not in any single part, but in all the parts together and in their relation to the end in view."69 Thus, the preamble and title to an act may be used as intrinsic evidence to determine whether the body Congress reasonably gave a disputed term a different and particular meaning from that disputed term's assumed ordinary and reasonable meaning.

In most circumstances, the preamble and title to an act are outside the statute's enacting clause. In those circumstances where either the preamble or title to an act is outside the statute's enacting clause, the preamble or title is not enacted into law and thus is not law. Since the statute's preamble and title require brevity, this brevity is to be considered when giving weight to the jejune preamble and jejune title language. Thus, the statute's preamble and title are far from conclusive evidence of the body Congress' meaning of the disputed term.

 

c. Floor Discussions, Bills, Reports

Among the intrinsic evidence, relevant floor discussion, bill, and report evidence is the best guide to the body Congress' meaning of a disputed term. The rationale for this is that, this evidence was applicably entered in the Congressional Record. In just about all cases, the Congressional Record will contain the necessary and proper written description of the scope of the subject matter of a term in a statute as to enable those subject to the statute to conform their behavior to that statute. Where the Congressional Record does not contain the necessary and proper written description for either an ordinary and reasonable meaning or a different and particular meaning, the law is to be voided by the courts, not judicially reenacted through extrinsic evidence. As Senator Hatch put it, "if the Congress does not enact a discernible principle for the resolution of cases, then justices or judges have no law to apply."70

One of the most endearing features of this public record evidence is that it is widely available in hard-bound, print form. Federal law requires the wide distribution of published compilations of separately bound legislative histories, the index to the Congressional Record, bill and resolution status tables in the Congressional Record index, and bill tracking reports.71 Legal scholars may obtain parts of the Congressional Record from a local member of Congress, who may send any part of the Congressional Record as franked mail under 39 U.S.C. § 3212(a).72 Moreover, members of press bureaus such as a newspaper correspondent need only make an application under 44 U.S.C. § 90673 to receive a semimonthly edition of the Congressional Record from the Public Printer.

The Congressional Record is also making its appearance in electronic formats. The academic legal community has access to an electronic version of the Congressional Record through LEXIS-NEXIS and WESTLAW which presently makes the search for Congressional Record entries regarding a particular bill introduced after 1984, relatively easy. Under 44 U.S.C. § 4101(a)(2),74 the Superintendent of Documents, under the direction of the Public Printer, is required to provide a system of online access to the Congressional Record. At present the National Digital Library Program of the Library of Congress75 is working over the next few years to bring the records of the U.S. Congress from 1774 up to 1873. From the Library of Congress' THOMAS: U.S. Congress on the Internet,76 the text of the Congressional Record from 1989 up to present is covered. However, there is a large gap in searchable Congressional Record information between 1873 and 1989, precisely the period in which most of the current federal statutes were enacted.

It is well known that the federal government mandates that United States citizens conform their behavior to the laws made pursuant to the United States Constitution. To conform their behavior to the laws of the United States (e.g., the federal statutes), the people must have a reasonable opportunity to determine the meaning of the terms of each federal statute. As discussed above, the meaning of a statutory term is comprised of the subject matter of that statutory term plus the scope of the subject matter of that statutory term (e.g., meaning = matter + scope). The subject matter of a statutory term is set out in the text of a federal statute. The scope of the subject matter of a statutory term is set out in the Congressional Record. Therefore, the people need reasonable access to the Congressional Record to determine the scope of the meaning of the terms in a statute in order to comply with the mandate from the federal government that the people conform their behavior to the laws made pursuant to the U.S. Constitution. Given the insignificant cost of making the Congressional Record available to every U.S. citizen over the Internet on one hand, and the necessity for reasonable access to the Congressional Record on the other hand, due process under the U.S. Constitution requires that Congress place the entire Congressional Record on the Internet. In other words, the process that is due from the federal government in response to its mandate that U.S. citizens conform their behavior to laws made pursuant to the U.S. Constitution, is that the federal government must place the entire Congressional Record on the Internet. Thus, as Congress' part in complying with the due process rights retained by the People, I recommend that Congress make the Congressional Record, from its 1789 inception to present, available on the Internet in a keyword, searchable format.77

Judicial activists misuse Congressional Record entries by looking partially past the statutory language to manipulate legislative history, thereby creating the appearance that their pre-determined conclusion as to the body Congress' meaning of a statutory term is constrained by the legislative process. As Judge Kozinski has noted,

The fact of the matter is that legislative history can be cited to support almost any proposition, and frequently is. The propensity of judges to look past the statutory language is well known to legislators. It creates strong incentives for manipulating legislative history to achieve through the courts results not achievable during the enactment process. The potential for abuse is great.78

In concurrence with this is Justice Breyer who stated that "[t]he problem of legislative history is its abuse, not its use."79

By compelling the trier of law to expressly address and analyze each intrinsic legislative fact, the rules of the STA Method prevent judges from abusing the legislative process by "looking over a crowd and picking out [their] friends," in the words of Judge Leventhal,80 or from looking over a crowd and eschewing all as not friendly. Only those meanings of individual members that are voted into law by a majority of Congress are elevated to law, the subject matter of which is in the text of the statute and the scope of which is set out in the Congressional Record. The other meanings residing in the Congressional Record that are neither voted upon, nor receive a majority vote, become discarded political ideas regarding that statutory term and shall not be revived by judicial activists. Supporting the actions of the majority in Congress over the actions of individual members of Congress is Chief Justice Roger Taney who stated in 1845 that "[i]n expounding . . . law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered."81 To this end, the trier of law must comb the Congressional Record backwards and forwards for any entry that is relevant and timely to the statutory term being addressed and analyze this legislative factual evidence. As a good guideline by which to initially operate, those timely Congressional Record entries that refer to the bill that enacted the disputed term into law may be entries that have relevance to the disputed term.82

Thus, the third step in analyzing for the body Congress' meaning of the term at issue is to organize the relevant and timely (A) floor discussions, (B) bills, and (C) reports into groups. Next, each Congressional Record entry within each group is set out expressly and analyzed in reverse chronological order to give proper weight to each entry. (Note that in the fourth step of this part of the STA Method, titled The Statute's Progression History Estoppel, the entries are analyzed in forward chronological order to identify disclaimed meanings.)

Under "The STA Rule of Omniscience," the relevant upstream-in-time floor discussion, bill, and report intrinsic evidence is irrebuttably presumed to be known by each member of the body Congress, the President, and the public prior to the current floor discussion, bill, or report being analyzed. The reason for this is that these intrinsic entries were applicably entered into the printed and published Congressional Record. Since the relevant upstream floor discussion, bill, and report evidence is irrebuttably presumed to be known by each member of the body Congress prior to the current floor discussion, bill, or report being analyzed, the weight of relevancy dictates that the downstream relevant floor discussions, bills, and reports-those later in time-are more relevant to whether the body Congress reasonably gave a disputed term a different and particular meaning than the earlier, upstream floor discussion, bill, and report evidence. Since more weight is given to the relevant floor discussions, bills, and reports that are later in time than are earlier in time, the grouped Congressional Record entries are set out and analyzed in reverse chronological order, i.e., the later entries are analyzed first to give effect to this difference in weight.

The order in which each group is analyzed gives the judiciary further guidance to the body Congress' meaning of a disputed term. In concluding that floor discussion evidence should be analyzed first, Senator Hatch reasoned that "Congress often does not know how to resolve a problem until it has engaged in a lengthy debate."83 Moreover, since all legislative meanings of a disputed term are presented, challenged, amended, or voted upon during floor discussions, floor discussion evidence is analyzed before bill and report intrinsic evidence.

 

i. Floor Discussions

The Congress of the United States is made up of the House of Representatives and the Senate, with each member of Congress similarly elected to their position by the People of the several states. As one of the benefits of their position, elected representatives are entrusted by the People with the authority and responsibility to decide the legal meaning of a statutory term that they want to envelop into that statute. The Constitution gives effect to this by entitling each member of Congress to legislator isonomy; that is by entitling each member to equal floor speaking rights and privileges subject to the legislative rules concerning the statements made on the floor of Congress under Article I, Section 5, Clause 2. For this reason, the majority of the text in the Congressional Record is of congressional floor discussions (sometimes provocatively referred to as congressional debates). Under the rules of the STA Method, this honor and privilege of serving as an individual member of Congress is to be given full effect by the trier of law. Thus, Congressional Record entries of floor discussion testimony from one member is accorded equal weight with that of another member subject only to the other rules of the STA Method.

There are certain issues regarding the Congressional Record floor discussion entries that require further clarification as to how these issues are addressed by rules of the STA Method. These issues include: (a) the President's legislative power; (b) post-discussion printing devices; (c) the manner of delivery in making statements on the floor; (d) the member's position within Congress, position concerning the procedural progression of the bill, or position likewise; (e) whether a certain member actually hears, reads, or otherwise has genuine knowledge of floor discussions; and (f) whether the legislature was made up of reasonable persons pursuing reasonable purposes reasonably during floor discussions.

 

(A). The President's Legislative Power

The Constitution gives the President powers that allow the President to uniquely contribute to the legislative process. Under Article I, Section 7, the President has approval power over bills as well as orders, resolutions, and votes that require bicameral concurrence.84 Under various other sections of the Constitution, the President is authorized expressly to make State of the Union Addresses, budget messages, economic reports, and measure recommendations directly to Congress. Moreover, the President can make speeches, signing remarks and the like that influence legislation.

Even with these presidential powers made explicit by the Constitution, the President's direct role in making law is ancillary in every respect to Congress' power to make all laws. The President's Article I, Section 7 approval power is at most a "go-no go" test, a "sign-return and objections" test, or an "approve-disapprove" test. For example, the Court held the Line Item Veto an unconstitutional delegation of power from Congress to the President in Clinton v. City of New York.85 In the case of a two-thirds congressional majority, the President's sign-return (pocket veto) power is made legally irrelevant by Congress. Even if the President signs into law a statute without fully understanding the body Congress' meaning of the terms in that statute, that law is still given full effect in the courts. Ignorance of the law is no excuse, whether you are the President of the United States or the average citizen.

With a few exceptions (some listed above), the President's ability to make entries into the Congressional Record is the same as that of the average citizen. A member of Congress may applicably place pre-enactment statements of the President in Congress' journal as a negotiation tactic to obtain the President's signature on a bill in the same way that a member may applicably place a statement of a constituent in the Congressional Record to appease that constituent. Thus, President and Vice President messages, statements, or declarations, like other entries applicably set out in the Congressional Record (such as "hot" debates, newspaper clippings, or canned colloquies), are accorded equal weight with floor discussion testimony of a member of Congress since all these entries essentially have been adopted by an individual member of Congress. This is consistent with the above rule that Congressional Record entries of floor discussion testimony from one member is accorded equal weight with that of another member subject only to the other rules of the STA Method.

Given the broad nature of State of the Union Addresses, budget messages, and economic reports, it is unlikely that legislative platforms made by the President during such speeches will be relevant toward a particular term within a particular bill. Moreover, presidential messages and other information not applicably set out in the Congressional Record are accorded no more weight than extrinsic evidence. Further, a pre-enactment recommendation by the President under Article II, Section 3 is extrinsic evidence unless a member of Congress applicably sets out such evidence in the Congressional Record.

Since a member of Congress cannot timely set out in the Congressional Record the remarks made by the President at the signing of a bill, presidential signing remarks are always extrinsic evidence regarding that bill. For example, then Attorney General Edwin Meese had it right when he persuaded the publishers of U.S. Code Congressional and Administrative News (hereinafter "U.S.C.C.A.N.") to include presidential signing remarks as extrinsic evidence in that publication's non-binding-on-the-courts legislative history collection. Others reacted poorly to Mr. Meese's actions.86 Thus, for these and other political questions, the judiciary is to defer to Congress' application of its Article I, Section 5, Clause 2 legislative rules concerning whether a statement made on the floor of Congress or elsewhere is to be applicably set out in the Congressional Record.

 

(B). Other Issues

Statements applicably set out in the Congressional Record are irrebuttably presumed to be statements of a member on the floor.87 Consequently, post-discussion printing devices such as Congressional Record page numbers, headlines, and anonymous bullets are at most extrinsic evidence since they are not statements applicably set out in the Congressional Record. This leads to the conclusion that the use of an anonymous bullet as a post-discussion, extrinsic evidence printing device in the Congressional Record to indicate that a statement was not actually delivered on the floor is not sufficient to change the intrinsic evidence status of that statement to extrinsic. Individual, unidentified members of Congress may not look over the Congressional Record after the conclusion of a floor discussion and pick out which entries the Judiciary is to befriend and which entries the Judiciary is to eschew as not friendly through the use of an anonymous bullet. Under the rules of the STA Method, the Judiciary is compelled to take friendship with all of the relevant and timely intrinsic evidence. Moreover, as the Laws and Rules of Publication of the Congressional Record state, the bullet is for historical accuracy; the bullet is not for evidentiary purposes in a court of law.88

Congress must either exclude non-proceeding statements from the Congressional Record-the "Journal of its Proceedings" as the Constitution mandates in Article I, Section 5, Clause 3-or adopt Article I, Section 5, Clause 2 rules that inherently carry with them an irrebuttable showing of reliability concerning non-proceeding statements. In other words, political winners in Congress assume the risk of altering the legal meaning of a term in a statute to the degree the political winners allow individual members of Congress to applicably include statements in the record "that are not the subject of debate" as a means of satisfying a constituent "who was not happy with the outcome of the law."89 Under the rules of the STA Method, the courts remain independent of such parliamentary tactics. Where an individual member requesting publication of statements not subject to debate concurrently disclaims any augmentation of any term meaning in any bill or statute regarding the unspoken Congressional Record entry, such a timely and relevant concurrent disclaimer statement applicably set out in the Congressional Record may achieve the legal goal of the anonymous bullet, where a post-discussion printing device links the concurrent disclaimer statement with the unspoken Congressional Record entry. A spoken example would be, "The following is not to be used to contribute to the scope of the subject matter of any statutory term." This progression history estoppel method may also open the judicial activist door; thus more study by Congress on this proposed solution is warranted.

Politics are the realm of the legislature and the American voter; not of a judiciary desiring to remain independent. Thus, a legislator's skill at being a legislator has no legal weight under The STA Rule of Omniscience. In other words, under The STA Rule of Omniscience, parliamentary tactics (such as whether a certain member actually hears, reads, or otherwise has genuine knowledge of the presentations on the congressional floor to the body Congress as evidenced by their applicable entries in the Congressional Record) have no legal weight. It is ironic that on one hand, some members of the Judiciary disparage the legislative process by complaining that few members of Congress actually have genuine knowledge of the intrinsic evidence, and on the other hand have no qualms about holding all legislatures bound to the judiciary's unwritten, inconsistent rules concerning the code the courts use to analyze statutes, where it is almost a sure bet that few members of Congress or the public have genuine knowledge of such a code.90

The trier of law is not to give any weight to the parliamentary tactic of using different manners of delivery to make statements on the floor. Moreover, in analyzing floor discussion evidence, the trier of law is not to give any weight to the member's position (i) within Congress, (ii) concerning the procedural progression of the bill, or (iii) otherwise. Furthermore, whether "the legislature was made up of reasonable persons pursuing reasonable purposes reasonably"91 is for the voters to decide, not the Judiciary. The exclusive power to account for absent members, whether in body or mind, is vested in one Congress by the Constitution under Article I, Section 5, Clause 1 and 2 or in the People through their power to elect their representatives. Certainly, the power to account for absent members of Congress is not in the hands of the unelected Judiciary.

One final issue in this area: in 1988, Senator Orrin Hatch set out a list of factors that the Judiciary should consider when using legislative history under the judicial self-restraint, encraty method.92 It is true that an actual vote and the revealed bounds of a proposition help a judge decide which propositions are political winners and which propositions are political losers. However, concerning the STA Method, the other factors listed for the encraty method are predominately political questions as discussed above. Allowing the Judiciary to consider even one of these political questions under the guise that it is a legal factor will create a loophole in the STA Method that will allow the Judiciary to implement its own meaning of a term in a statute.

On the line is our political process for which we as a people depend upon Congress as "a human institution" to serve our "basic human or societal needs."93 Senator Orrin Hatch poignantly summarized this when he stated that:

[w]hat is at stake . . . is nothing less than our right to democratic self-government as opposed to . . . 'Government by Judiciary.' For when we commission judicial activist who distort the Constitution to impose their own values, policy preferences, or visions of what is just or right, we are in effect sacrificing our ability to govern ourselves through the democratic political process to the whims and preferences of unelected, life-tenured platonic guardians.94

To this end, the life of the law has never been logic: it has been the experience of the elected members of Congress.95 Because of the experiences of the members of Congress and the stakes involved in enacting law, there is nothing genteel or civil about politics. Congress is better off following the Judiciary's lead and keeping such politics in the confines of its own branch, rather than passing them onto the other branch.96

 

ii. Bills

Bill evidence is analyzed second because a bill embodies the potential law that is voted upon during the floor discussion. The text of a series of related bills is amended through the legislative process where the last bill represents the text of the enacted statute. In conjunction with notification of the President signing a bill into law, the text of the statute is reprinted in the Congressional Record. Thus, the statute itself contributes to the scope of the meaning of each term in that statute both in its various bill forms and as an enacted statute.

iii. Reports

Report evidence is analyzed after floor discussion and bill evidence since report evidence at best gives insight into the context of the floor discussions and bills. Ideally, staff members of Congress will write such reports to embody the collective understanding of those members of Congress involved in drafting and studying the proposed legislation as set out in the transcripts of congressional hearings. Human nature being what it is, the members of Congress, like the members of the Judiciary, will delegate the more mundane tasks of government to their staff. The Constitution accounts for such human nature97 and so do the rules of the STA Method. Of course, the report will be subject to the checks and balances of signatory, publication, and distribution approval of one or more members of Congress under Article I, Section 5, Clause 2 of the United States Constitution.

Judge Abner Mikva, a former twenty-plus year member of Congress, has warned against wholesale acceptance of committee reports since "[c]ommittee reports are too frequently used for political horse-trading and individual ego trips."98 Moreover, Senator Hatch has noted that committee staff reports are "only tangentially related to the actual legislative process. Courts [as directed by the Federal Rules of Evidence] ought to accord such reports very little . . . significance."99 Overemphasizing this staff-prepared, "collective understanding" by analyzing it before floor discussion or bill evidence relaxes the pressure on legislatures "to discharge their responsibility with care, understanding and imagination,"100 politically minimizes each elected member of Congress' floor-speaking rights and privileges, and usurps Congress Article I, Section 5, Clause 2 political power. Elected members of Congress who not directly involved in the procedural progression of a bill have every right to wait until the floor discussion concerning the bill, or its reports, as an outflanking, parliamentary tactic to surprise their unprepared political adversaries with cogent arguments that will sway the body Congress to vote or amend in opposition to the drafters or preparers of the bill. An elected member of Congress who is involved directly in the procedural progression of a bill may add that member's voice to the collective understanding of the report during the floor discussion concerning the bill or its reports as a pincers movement to cut off their unprepared political adversaries with substantially simultaneous cogent arguments that will sway the body Congress to vote or amend in favor of the drafters or preparers of the bill.101

By overemphasizing report evidence, no member of Congress will bother to attend the floor discussions since the game will have already concluded once the staff-prepared report is issued. Although far-fetched in thought, by overemphasizing report evidence in the courts, we may eventually end up with a congressional floor discussion with only two members in attendance: the presiding member and a C-SPAN television camera pointed at the member who is speaking on the floor, pretending that in each seat is a member attentively listening and learning. If parliamentary tactics such as outflanking, pincers movement, bait and switch, and filibustering are perceived by the Judiciary through the Judiciary's incomplete analysis to produce absurd, anomalous, or unfair results, it is for Congress-not the Judiciary-to apply or augment its Article I, Section 5, Clause 2 rules of proceedings concerning such parliamentary tactics. Thus, the Judiciary is to analyze report evidence after floor discussion and bill evidence.

 

d. The Statute's Progression History Estoppel

For the fourth of the six steps in analyzing a term at issue in the statute itself, each relevant and timely floor discussion, bill, and report entry is analyzed sequentially by record entry date (e.g., forward chronological order) to determine whether any congressional meaning of a disputed term found in analyzing the grouped floor discussions, bills, and reports was effectively disclaimed in subsequent congressional entries. Although floor discussions, bills, and reports are analyzed as groups, the entries within each group influence and may supersede one another as each entry of each group individually makes its appearance on the congressional floor. Thus, this forward entry progression history limits the body Congress' meaning of a disputed term or estops assertion of the body Congress' meaning of a disputed term to exclude any meaning of a term at issue in a statute that was effectively disclaimed during downstream progression of that term through Congress. To coin a phrase, this is the "Progression History Estoppel."102

 

e. Extrinsic Evidence

As discussed above, extrinsic evidence is evidence that is not applicably set out in the Congressional Record and thus is external to the body Congress' meaning of a statutory term. Favoring extrinsic evidence over intrinsic evidence is not only in the opposite direction of getting the meaning precisely right, but is at odds with the principles of democracy established by the People of the United States. If the Constitution does not elevate the bits and pieces that make up the legislative history to the status of law, there is no way that the Constitution elevates the bits and pieces that make up the extrinsic evidence to the status of law or even to legislative factual evidence. The members of the body Congress have no opportunity to disapprove or approve of extrinsic evidence, and the President has no chance to sign or return and object to extrinsic evidence or approve or disapprove of extrinsic evidence. Extrinsic evidence does not contain any "matter which is properly to be regarded as legislative in its character and effect."103 Of course, "[n]ot every action taken by either House is subject to the bicameralism and presentment requirements of Art. I."104 In the case of the floor discussion intrinsic evidence and report intrinsic evidence, it is illogical as well as impracticable to subject it to either the bicameralism or presentment requirements. Unlike intrinsic evidence, however, even the most thorough analysis of extrinsic evidence represents no view of any legislator. In short, extrinsic evidence does not represent any of the views of any actor in the legislative process, including lobbyists and committee staff people, who are intimately involved with particular legislation.

Judicial activism is destructive. At best, it contaminates the legislative process. At worst, it subverts our system of Government by Constitution. While the Judiciary's misuse of intrinsic evidence can distort the proper voice of each branch of our Government by Constitution,105 the use of extrinsic evidence over intrinsic evidence distorts this proper voice in all cases. If intrinsic evidence at best can shed light only on what a small portion of Congress gave as the meaning of a term in a statute,106 extrinsic evidence will never shed any light on what a small portion of Congress gave as the meaning of that same term. This is because it is impossible to reconstruct, accurately or otherwise, what transpired when extrinsic evidence was created as the body Congress used its vested legislative power to pass a bill.

Relying on extrinsic evidence over intrinsic evidence subverts the Constitution by accepting extralegislative materials as legislative authority. The idea that the diverse membership of the entire world from which the extrinsic evidence may be drawn can ever have one collective "intent" on anything, is not only a myth but may be used to allow those foreign to the United States to influence our legislative process. If there is any perceived ambiguity in the body Congress' meaning of the terms in a statute after complete analysis under the STA Method, it is most likely because some members of the unelected Judiciary and some members of the legal academic world will have intentionally maintained this perception of ambiguity to further their political goals through the ever-present, nonlinear paths in the hierarchy of the Judicial Branch.

The extralegislative nature of extrinsic evidence dictates that extrinsic evidence is at most adminiclar evidence. Thus, extrinsic evidence may be used by the Judiciary only to aid in understanding the body Congress' meaning of a vague or ambiguous term used in a floor discussion, bill or report. Thus, the hierarchy of legislative factual evidence is as follows: The body Congress' legal meaning of an expressly defined statutory term is determined from the text of the statute. The body Congress' legal meaning of a disputed statutory term is determined from the intrinsic evidence of the text of the statute, as well as floor discussion, bill, and report intrinsic evidence. The body Congress linguistic meaning of a vague or ambiguous term in a floor discussion, bill or report may be clarified from extrinsic evidence, subject to the rules of the STA Method.

To limit the power of the government, the People of the United States enumerated and sandwiched the government's powers between the individual liberty of the People (as declared in the Preamble to the Constitution) and the individual liberty of the People (as declared in the Ninth and Tenth Amendment of the Bill of Rights). Thus, where the factual issues of the litigants fall within the scope of Congress' exercised power to make all laws, the Judicial Branch of the government may not use extrinsic evidence to subtract from, alter, or vary the scope of the subject matter of a term in Congress' law. Moreover, where the factual issues of the litigants appearing before the court fall outside the scope of Congress' exercised power to make all laws, the Judicial Branch of the government may not use extrinsic evidence to add to, supplement or extend the scope of the subject matter of a term in Congress' law. To do so in either case would be to bypass the Constitution's restriction on the Judicial Branch of the government to proceed only with that power the Judicial Branch is given.

Limiting the use of extrinsic evidence to at most explaining the language used by a member of Congress, allows the people subject to the laws of the United States the right to review the undisputed intrinsic evidence as set out in the public Congressional Record, apply the rules of the STA Method to ascertain the matter and scope of the law and, thus, comport their behavior to the terms of the law enacted by Congress. Construing Congress' right to use the Article I, Section 5, Clause 3 public record in making all laws in a way that implicitly or explicitly allows any branch of the government to use the extrinsic evidence to alter or change the intrinsic evidence, disparages the due process rights of the People.

With the above discussion in mind, rules under the STA Method regarding extrinsic evidence can be established. Where analysis of the intrinsic evidence alone will reasonably determine the body Congress' meaning of a disputed term, it is improper to give any weight to extrinsic evidence to alter the disputed term's reasonably determined meaning. The rationale for this is that intrinsic evidence-the text change of the statute, the act, floor discussions, bills, and reports-rather than extrinsic evidence, constitutes the Article I, Section 5, Clause 3 record of the elected members that make up the body Congress.

Where the body Congress' linguistic meaning of a term in a floor discussion or report cannot reasonably be determined from the intrinsic evidence alone, extrinsic evidence may be considered, not as legislative factual evidence, but as an aid to getting the trier of law thought process within the linguistic area of Congress' actions. In these very narrow circumstances, extrinsic evidence such as legislation, judicial cases, learned treatises, and dictionary definitions107 may be used as extrinsic evidence of the body Congress' linguistic meaning of a term in the Congressional Record. In other words, extrinsic evidence may be admitted only as a linguistic aid to the memory and understanding of the court.108 Extrinsic evidence may neither be admitted to subtract from, alter, vary, add to, change, or supplement intrinsic evidence or the legal meaning of a term in Congress' law.

While an argument can be asserted that the body Congress knows all knowledge prior to passing the act, there is no logical (and therefore no legal) way to conclude that such knowledge had any influence on whether the body Congress reasonably gave a disputed term a different and particular meaning from that body term's assumed ordinary and reasonable meaning unless a member of Congress applicably set out this evidence in the Congressional Record. Thus, although timely legislation, judicial cases, learned treatises, and dictionary definitions may be relevant as extrinsic evidence where not applicably set out in the Congressional Record, under "The STA Corollary" to The STA Rule of Omniscience, timely extrinsic evidence is not legislative factual evidence.

Certain extrinsic evidence issues require further discussion to clarify how these issues are addressed by rules of the STA Method. These issues include: (i) the role of interest groups in procuring legislation; (ii) existing legislation and judicial analysis; (iii) transcripts from Committee Hearings; and (iv) how the rules of the STA Method work.

i. The Role of Interest Groups in Procuring Legislation

Judge Posner correctly observed that the role of interest groups in procuring legislation is fundamental.109 The President, business organizations, labor unions, public interest groups, civil servants, legislative staffs, the average citizen, and the Judiciary all have an interest in Congress' legislation. Thus, after consulting the writings or statements of the groups and individuals with special interest in legislation ("special interest" is used in this article melioratively), an individual member of Congress should manufacture legislative history by planting legislative meaning of a statutory term in the Congressional Record per the Article I, Section 8, Clause 2 rules with the intent that the courts find and use this meaning to the extent that it is the body Congress' meaning of the statutory term at issue.110 The Constitution accounts for such human nature111 and so do the rules of the STA Method. Since "[e]very legislative staff member wants to write a speech or report that determines the outcome of a future case,"112 the political winners will cancel out the political losers, thereby mitigating any perception of abuse or adulteration of the political process.

It is important to note that mere citation to a case during a floor discussion or in a bill or report is not sufficient to rise to the STA Method level of "applicably set out in the Congressional Record." For example, in the 1989 Supreme Court case of Blanchard v. Bergeron,113 a congressional committee report made reference to the Fifth Circuit case of Johnson v. Georgia Highway Express, Inc.,114 without describing the twelve factors within the Johnson case. Correctly reasoning that the members of Congress "have better uses for their time than [setting off for the nearest law library to pour] over . . . Court opinions," Justice Scalia's concurring opinion indicated that the twelve Johnson factors would have to have been sufficiently described in the committee report to be deemed applicably set out in the Congressional Record.115 Thus, any "heady feeling" of legislative immortality that a young staffer has through inserting a citation to a Supreme Court, appellate court, or district court case in a committee report will be short-lived under the rules of the STA Method.

Members of Congress have exclusive control over whether the interests of groups and individuals with special interest in legislation become intrinsic evidence by reason of Congress' control over the Congressional Record through Article I, Sections, Clause 2 and 3. For example, a judge or Supreme Court Justice having a special interest in a linguistic definition must exercise a dedication to the rule of law as well as self-restraint by waiting for Congress to elevate that linguistic definition to an applicable legal definition through the Congressional Record before applying that definition as law. Thus, the timely interests of these special interest groups are deemed intrinsic evidence only if these interests are applicably set out in the Congressional Record by an elected member of Congress. Such applicable entries are accorded equal weight with floor discussion testimony of a member of Congress since these applicable entries essentially have been adopted by an individual member of Congress. This is consistent with the STA Method rule that Congressional Record entries of floor discussion testimony from one member is accorded equal weight with that of another member subject only to the other rules of the STA Method.

 

ii. Existing Legislation and Judicial Analysis

Under the rules of the STA Method, each member of Congress, like others subject to the laws of the United States, is assumed to know of existing legislation and analysis thereunder. As the Court said in 1990, "[w]e assume that Congress is aware of existing law when it passes legislation,"116 in 1988 "[w]e generally presume that Congress is knowledgeable about existing law pertinent to the legislation it enacts,"117 and in 1987 "Congress is presumed to act with full awareness of existing judicial interpretation."118 In 1979, the Court drew the conclusion that "[i]t is always appropriate to assume that our elected representatives, like other citizens, know the law."119 One year earlier, the Court relied on 1975, 1951, and 1920 Supreme Court cases to state that "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation [as extrinsic evidence] when it re-enacts a statute without change."120 Moreover, as early as 1835, the Court stated that "Congress must be presumed to have legislated under this known state of the laws and usage of the treasury department."121

Thus, consistent with the Court's holdings, when enacting new legislation, timely legislation, legal cases, and other evidence not applicably set out in the Congressional Record concerning that new legislation is at most relevant as extrinsic evidence under the rules of the STA Method. In other words, information merely written down somewhere, without more, is not sufficient to rise to the level of intrinsic evidence. Using such extrinsic evidence as intrinsic evidence is another trick used by judicial activists to sidestep Congress' meaning of a statutory term and implement that judicial activist's meaning for that same statutory term.

Congress has the power to enact statutes in whole or in part. Where Congress enacts a statute in various parts, the other subsections are intrinsic to the subsection at issue only if the other subsections are applicably set out in the Congressional Record concerning the subsection at issue. As Senator Hatch observed, "[i]t is undeniable that some legislative history plays no legitimate role in the legislative process."122 Thus, being part of a statute, without more, is not sufficient to be used as intrinsic evidence of another part of that same statute.

The rationale for deeming as extrinsic evidence text merely written down somewhere and deeming some text within a statute extrinsic to other text within that same statute centers on the act of applicably making Congressional Record entries. By definition under the Rules of the STA Method, extrinsic evidence is evidence that is not applicably set out in the Congressional Record. If a member of Congress did not know of this extralegislative information, the information could not have had influence on the meaning of a statutory term. If each member of Congress knows about this information (as is presumed by the Supreme Court), every member of Congress irrebuttably elected not to applicably enter the information in the Congressional Record. Thus, the information had no influence on Congress' meaning of the statutory term. In other words, "to analogize silence to legislating goes rather far . . . . [S]ilence seems quite far removed from the Constitution's paths of bicameralism and presentation to the President."123 Either way, Justice Stevens' admonishment bolsters this rationale: "Justice Frankfurter's scholarly observation concerning the [analysis] of a statutory [term] also applies to the analysis of legislative history: 'One must . . . listen attentively to what it does not say.'"124 If the Congressional Record does not "say it," it is not intrinsic evidence.

The Constitution is the supreme law of the land.125 Moreover, Congress, not the Judiciary, is the architect for the basic human or societal needs of the people under our Government by Constitution.126 Although Court opinions are the supreme legal precedents of the land, the body Congress' meaning of a disputed term in a statute is set out by the elected members of Congress in the Congressional Record as authorized by the Constitution and not set out in case law by unelected judges. Thus, case opinions at any level-including the U.S. Supreme Court-not applicably set out in the Congressional Record by a member of Congress essentially carry no legal weight as to the body Congress' meaning of a term in a statute. This distinction between statutory law and common "law" may be hard to accept by attorneys trained only in the common law system. However, the Constitution's Article I, Section 8, Clause 18 directive that Congress shall have the power to make all laws in term - and especially in term meaning - must be obeyed.

 

iii. Transcripts from Committee Hearings

In general, transcripts from Committee Hearings are extrinsic evidence since these transcripts are usually embodied into intrinsic committee reports, where such reports subsequently are presented to the body Congress. Thus, where transcripts from committee hearings are not applicably set out in the Congressional Record, transcripts (and portions of transcripts) from committee hearings are extrinsic evidence. The rationale for this is that an extrinsic evidence committee meeting statement is merely an isolated excerpt from a statement made by an unelected witness to a single committee meeting of a single House as ultimately embodied in a single intrinsic committee report by unelected staff members, where the single intrinsic committee report is analyzed along with all the other intrinsic evidence for use in determining the body Congress' meaning of a statutory term enacted by the body Congress. Under the STA Method, transcripts from committee meetings are not bestowed encyclical weight. The best use of an extrinsic evidence committee meeting transcript that I have found is to use it to identify the legislative proposals that lose during the political process but are impermissibly revived by judicial activists during the judicial process.127

What presents itself as an exception to the above rule occurs when the House resolves itself into the Committee of the Whole House. For example, in considering House Bill 5037-the Law Enforcement and Criminal Justice Assistance Act of 1967128-the House resolved itself into the Committee of the Whole House on the State of the Union where transcripts of this Committee meeting were reproduced in the Congressional Record.129 The STA Method rule is that a piece of evidence is intrinsic if that evidence was applicably set out into the Congressional Record. Thus, under circumstances where the transcript of the Committee of the Whole House meeting is applicably set out in the Congressional Record, such a transcript is intrinsic evidence and thus is not an exception to this rule.

iv. How the Rules of the STA Method Work

The STA Method relies on Article I, Section 5 of the Constitution to compel the Judiciary to implement the body Congress' meaning of a statutory term. The congressional proceedings rule, that only elected members of the body Congress may make Congressional Record entries, serves as the gatekeeper to Congress' power to make all laws.130 Since only elected members of the body Congress may make Congressional Record entries, The STA Rule of Omniscience allows each member of the body Congress that member's Constitutional authority and responsibility to decide the meaning of a statutory term that the member wants to envelop into the body Congress. Since only elected members of the body Congress may make Congressional Record entries, The STA Corollary to The STA Rule of Omniscience keeps out a non-member's meaning of a statutory term. Since only elected members of the body Congress may make Congressional Record entries, the interrelationship between The STA Rule of Omniscience and The STA Corollary is the impenetrable wall of "We the People" that keeps the elected body Congress' Article I, Section 8, Clause 18 legislative power to make all laws-in both word and word meaning-out of the hands of the unelected Judiciary.

There is a general concern in the legal community about the use of the Congressional Record. However, published compilations of separately bound legislative histories, the index to the Congressional Record, bill and resolution status tables in the Congressional Record index, and bill tracking reports aid the trier of law in obtaining all Congressional Record entries that are relevant and timely to the enacted bill being addressed. Although at times there may be a bulky amount of material to analyze, the adversarial process will help ensure that all of the relevant and timely intrinsic evidence will be brought to the attention of the trier of law. And, although there might be some concern about the bulk of the material in the Congressional record, under 44 U.S.C. § 901 the Joint Committee on Printing is required to take all needed action for the reduction of unnecessary bulk in the Congressional Record as part of its duty to provide that the Congressional record be substantially a verbatim report of the proceedings of Congress. Moreover, the academic legal community's access to an electronic version of the Congressional Record presently makes the search for Congressional Record entries regarding a particular bill introduced after 1984 relatively easy.

It is important to reiterate that evidence is untimely if not in existence at the time the statutory term was enacted. As stated above, using intempestive evidence (evidence that came into existence after the enactment date of the statute at issue) diminishes Congress' law into nothing more than an abstract proposal with which the Judiciary may do as it pleases ex post facto. Thus, untimely judicial opinions are inadmissible evidence in analyzing the body Congress' meaning of a statutory term. Moreover, since a judge's own meaning of a statutory term is always irrelevant, an issued judicial opinion implementing that judge's own meaning of a term in a statute is outside the Judiciary's Article III power granted by the People through the Constitution.

 

f. Conclusion: The Term at Issue

The above rules of evidence of the STA Method concerning the relevancy, timing, weight and order of analysis of the intrinsic and extrinsic evidence will ensure that the body Congress' meaning of a statutory term will be flushed out by the Judiciary from the Congressional record. In this way, Congress will in practice have the power to make all laws. Thus, with the appropriate evidence set out and analyzed, a proper conclusion may be drawn about the body Congress' meaning of a term at issue in a statute.

 

4. Conclusion: The Statute at Issue

As the fourth and final part of the STA Method, the trier of law draws a conclusion as to the statute at issue and applies that conclusion to the issues of the litigants before the court. In other words, with the body Congress' meaning of each term at issue properly defined, the statute at issue may be applied to the issues at hand. It is important to note that, with the body Congress' meaning of each term in a statute determined under the STA Method, the body Congress' "intent" becomes a foregone conclusion. Congress does not enact its "intent" into law. Rather, Congress enacts the authority and responsibility for the courts to carry out Congress' directions as ordered. Thus, any conclusion by the trier of law as to the body Congress' intent can only have importance as a heuristic technique of determining the body Congress' meaning of a term in a statute. It is Congress' action that the Judiciary must react to, not Congress' state of mind.131

 

5. Comments on the STA Method

I have intentionally not discussed the patent law term analysis techniques of equivalency thereof and Doctrine of Equivalents as they apply to the STA Method. Although these may play a role in some form under the STA Method, "the answers to the problems of an art are in its exercise,"132 and not in some abstract proposal. Thus, the discussion of other patent law term analysis techniques as they apply to the STA Method must wait until a real life situation from the past or the future is properly analyzed. For this same reason, the discussion of the effect of a series of enacted statutes has on one statute in that series will have to wait for another day. As Judge Posner has observed, "[o]bviously a statute can change the meaning of an earlier statute even if the later statute does not expressly amend the earlier."133 However, when the majority in Congress repeals a statute, both the text of that statute and the Congressional Record entries associated with the terms in that statute become extrinsic evidence for the purpose of determining Congress' meaning of a term in a statute.

One question that may arise in enacting the Rules of the STA method into the Federal Rules of Evidence is 'How can a culture of twenty or one hundred years ago govern us today?' The answer is that, although the tangible embodiment of the subject matter within litigant facts at issue may not have existed at the time the law was passed, the intangible aspects of this same subject matter most likely exist at the time the statute was passed. For example, although the Internet did not exist at the time most federal laws were passed, those same federal laws still cover legal issues, surrounding the Internet. The reason that those same federal laws still cover legal issues surrounding the Internet is that, similar to a patent claim written in the present to cover future behavior, those same laws those same laws govern the intangible, communicative aspects that eventually were embodied into a tangible network of communication devices known as the Internet.

 

In particular, the rules relating to the analysis of the terms in a prospectus, a contract, a deed, a will, a patent, a warrant, an order, a resolution, a statute, a treaty, a constitution, the Bible or any other document open to public inspection are similar, whether the document is from a local, state, or federal government of the United States or other government. Thus, like the Rosetta stone found in 1799 at Rosetta, Egypt, the rules of the STA Method can be adapted to any area that analyzes the information contained in public documents that have the same or different date. For example, the rules of the STA Method can be adapted to analyze historical documents, political science documents, state and federal agency regulations, statutes of the several States and other countries, the Constitutions of the several States and other countries, international treaties, and other international documents, as well as documents in the Catholic Church and Roman Law.134 For the purposes of this article, the rules of the STA Method next will be adapted as the Constitutional Term Analysis (CTA) Method.

 

C. Constitutional Term Analysis (The CTA Method)

The United States Constitution is an inanimate, written document that allows the living American society to adapt, change, and grow while ensconced within the Constitution's warm, protective bounds. However, complying with the Judiciary's Marbury v. Madison duty to say what the law is concerning the Constitution is difficult. The temptation for an overworked judge to take short cuts or a judicial activist to claim that words have no meaning is always present and to date has had little consequence. Addressing the idea of constitutional term analysis, Justice Scalia wrote in 1988:

Let me turn next to originalism, which is also not without its warts. Its greatest defect, in my view, is the difficulty of applying it correctly. Not that I agree with, or even take very seriously, the intricately elaborated scholarly criticisms to the effect that (believe it or not) words have no meaning. They have meaning enough, as the scholarly critics themselves must surely believe when they choose to express their views in text rather than music. But what is true is that it is often exceedingly difficult to plumb the original understanding of an ancient text. Properly done, the task requires the consideration of an enormous mass of material-in the case of the Constitution and its Amendments, for example, to mention only one element, the records of the ratifying debates in all the states.135

Although constitutional term analysis is an enormous task, a judge is bound by oath as well as the Marbury v. Madison136 duty to say what the law is. "Nothing worthwhile is easy."137 No matter how great the task or the opposition to the success of that task, the struggle to legitimize the Court's constitutional jurisprudence must be constantly waged, even if success is not in view and will be achieved by others down the line. The people of the United States have a right to expect no less from their judges and Justices. Thus, the time has come for the courts to comply with constitutional term analysis under our Government by Constitution.

The trenchant, analytical structure set out above was shown in my article Patent Compensation to provide a fair and comprehensive statutory term analysis method that allows one to cut to the heart of the matter concerning statutory terms.138 By enlarging the scope of the intrinsic evidence to include the several states' Legislature Record entries and the Constitutional Convention Record entries, this trenchant analytical structure also will provide a fair and comprehensive method of constitutional term analysis that allows one to determine the subject matter and the scope of that subject matter for the terms in the Constitution. Similar to the STA Method, this new method of constitutional term analysis can be used to flush out the representatives' meaning of the terms in the United States Constitution. The following is an outline of how Congress could make additions to the Federal Rules of Evidence concerning the U.S. Constitution.

 

1. Intrinsic Evidence Use

Regarding the intrinsic evidence of a term in the Constitution, the constitutional term analysis rules in this article are similar to the statutory term analysis rules set out above. However, unlike the single area of the Congressional Record for statutory term analysis, three areas comprise the intrinsic evidence for constitutional term analysis where such evidence is timely and relevant: (i) the Congressional Record entries introduced on the floor of Congress, (ii) the state Legislatures Record entries introduced on the floor of the Legislatures of the several states (e.g., the "records of the ratifying debates in all the states"),139 and (iii) the Constitutional Convention Record entries introduced on the floor of a Constitutional Convention.

Document evidence for constitutional term analysis is generated during the proposal phase and the ratification phase in adopting a new Constitutional term.140 Depending upon our Constitution's article or amendment, document evidence will exist from the floor of Congress,141 the floor of the state legislatures, or the floor of a Constitutional Convention.142 For the seven articles and the twenty-seven amendments of the Constitution, this intrinsic evidence already exists and is finite, but voluminous. Since evaluating the reliability of documents is a common practice in the federal courts, a federal court, special master, or congressional task force would be able to evaluate the reliability of any record of the ratifying debates in a state, should the unlikely need arise.143

However, no court or litigant has the resources to compile this information. The task of this compilation is better suited to the historian than the lawyer.144 At present, analyzing a term in the Constitution remains an unfunded, constitutional mandate that has led to the judiciary's multifarious, mystical approaches to the Consitiution. Thus, absent funding for this mandate, Congress forces validation of all constitutional law approaches by the Supreme Court. Since there are seven articles and twenty-seven amendments to the United States Constitution, I recommend that Congress compile the intrinsic evidence relating to the articles and amendments into thirty-four volumes as published on the Internet for use by the Judicial Branch and others.145

Paralleling the rules of the STA Method, under "The CTA Rule of Omniscience," relevant upstream-earlier in time-floor discussions, bills, and reports are irrebuttably presumed known by each member of Congress, by each member of each legislature of the several states, or by each member of the Constitutional Convention prior to the current floor discussion, bill, or report being analyzed, depending upon which legislative body produced the document. In analyzing the representatives' meaning of the constitutional term at issue, the individual entries of the Congressional Record, Legislatures Record, and Constitutional Convention Record are to be weighted according to that party's respective vote weight in adopting the term at issue. Importantly, the vested right of the states to make constitutional amendments must not be ignored by the Courts. As Judge Cameron of the Fifth Circuit admonished:

History combines with the cases above discussed and the Acts of Congress treated in them to admonish us to be not over-persuaded by the unctuous voices of the concatenate coteries of coddled claques, chanting their well-rehearsed clichés into permitting the reverence all courts hold for due process and equal protection, to tempt us to forget that the bedrock of our constitutional system rests upon faith in and respect for the states and their rights.146

Similar to federal statutes, the judiciary's relationship to our Constitution parallels the construction worker's relationship to architectural blueprints: Both have the duty to implement the architect's meaning of the terms in that document. However, some judges actually intend to legislate with their analysis, not adjudicate, despite their Article VI, Clause 3 oath of office. Of course, all judges will state for the record that the Judiciary's "intent" is not relevant to Congress' meaning of a statute's term or Congress' and the several States' meaning of a constitutional term, even within the same analysis that crosscuts judicial legislation under the guise of judicial adjudication.

The representative's meaning of a term in the Constitution is relevant in the judiciary's analysis because our Constitution provides for article/amendment ratification by Congress and the several States. Thus, within the judiciary's analysis, the issue is exclusively whether Congress and the States reasonably adopted a different and particular meaning for the term at issue or reasonably adopted that term's ordinary and reasonable meaning. Only by analyzing and drawing a conclusion as to Congress' and the States' meaning of a disputed term will the judiciary be able to implement the representatives' meaning of a term in the Constitution.

 

2. Extrinsic Evidence Use

Regarding the use of extrinsic evidence in determining the meaning of a term in the Constitution, the constitutional term analysis rules are similar to statutory term analysis rules set out above. Where an analysis of the intrinsic evidence alone will reasonably determine the representatives' meaning of a disputed constitutional term, it is improper to give any weight to extrinsic evidence to alter the disputed constitutional term's reasonably determined meaning. The rationale for this is that the entries introduced on the floors of the representatives, rather than extrinsic evidence, constitute the record of the representatives of Congress and the representatives of the Legislatures of the several States.

Although timely legislation, judicial cases, learned treatises, and dictionary definitions may be relevant as extrinsic evidence where not applicably set out in the records of Congress, the State, and Constitutional Convention, under "The CTA Corollary" to The CTA Rule of Omniscience, extrinsic evidence is constitutional factual evidence.

The CTA Method relies on undisputed, relevant and timely public records and the rules concerning these Records to compel the Judiciary to implement the representatives' meaning of a Constitutional term. Since only representatives may make record entries, The CTA Rule of Omniscience allows each member federal or state constitutional authority and responsibility to decide the meaning of a constitutional term that the member wants to envelop into the relevant body, legislature, or convention. Moreover, the CTA Corollary to The CTA Rule of Omniscience keeps out a non-representative's meaning of a constitutional term. Since only representatives may make record entries, the interrelationship between The CTA Rule of Omniscience and The CTA Corollary is the impenetrable wall of "We the People" that keeps Congress' and the Legislatures of the States' Article V Constitutional term adoption power-in both word and word meaning-out of the hands of the unelected Judiciary.

It is important to note that extrinsic evidence is untimely if not in existence at the time the constitutional term was adopted. Using evidence that came into existence after the adoption date of the constitutional term diminishes our Constitution into nothing more than an abstract proposal with which the Judiciary may do as it pleases ex post facto. Thus, untimely judicial opinions are inadmissible evidence in analyzing the representatives' meaning of a constitutional term. Moreover, since the Judiciary's own meaning of a disputed constitutional term is always irrelevant, judicial opinions using the Judiciary's own meaning of a constitutional term are outside the Judiciary's Article III power. As Justice Black concluded, "[d]eciding what the Constitution is, not from what it says, but from what we think it would have been wise for the Framers to put in it . . . [is] 'judicial activism' at its worst."147

Despite the belief of some judges and law professors, the judiciary is not the architect of the United States as a society. Moreover, our Constitution is not a burning bush from which frightened lawyers are to avert their eyes toward the human or societal wisdom of the members of Supreme Court. Our Constitution is an invention; a method of operating our Government where the meaning of each term in our Constitution, similar to the terms in a statute, patent, or other Government document, is to be implemented after the trier of law analyzes the undisputed public record and concludes what Congress and the several States' meaning of that term is. All things are relative. Matter, time, space, and graviton are interdependent. Law itself is invention.

 

III. THE SOLUTION TO TRIER OF LAW JUDICIAL ACTIVISM

Judicial activism is prevalent in our system of Government. In the context of the trier of law, judicial activism is when a judge implements that judge's own meaning of a term in a statute. Contrary to popular thinking, this is not caused by liberal or conservative ideologies, but by the serious, growing imbalance of power between Congress and the judiciary.

Judicial activism is power driven, not issue driven. Those with conservative ideologies have used judicial activism in weak, ennomic attempts to return Congress' power to make all laws back to Congress or in pathetic attempts to exploit it. Those with the less popular liberal ideologies have successfully used judicial activism to take more and more of Congress' power to make all laws on behalf of the judiciary and to enjoy the episodic spoils that flow from asserting Congress' power through the courts. In either case, political ideologies that fare poorly in the ordinary political process are given effect in the courts through judicial activism. Moreover, judicial activism is used to the disadvantage of Congress in either case since Congress' statutes are not implemented as enacted into law.148 The overall effect is a continuously growing imbalance of power between Congress and the judiciary.

Those who practice judicial activism deny its existence or cloud its meaning. Those who seek to prove the existence of judicial activism to a legal degree of certainty have so far failed to do so. Moreover, attempts by members of the Judiciary and Congress to hold back the judicial tide of usurpation of Congress' powers have, at best, slowed down judicial activism and, at worst, defamed and degraded our system of Government. Below, this article discusses judicial activism, separation of powers, and the current solutions being implemented to combat judicial activism, as well as offers a three-pronged approach led by the rules of the STA Method as the solution to the serious separation of powers' problem caused by those involved in the Judicial Activist Movement. Before reading this Part, however, the words from the Court's own Justice Frankfurter and Justice Stevens about criticizing our profession are relevant here. Justice Frankfurter writes that "judges must be kept mindful of their limitations and of their ultimate public responsibility by a vigorous stream of criticism expressed with candor however blunt."149 Justice Stevens writes that "[d]isagreements with . . . judges is a characteristic of our profession that implies no disrespect and no lack of faith in the inherent strength of our institution. We must begin to talk about our problems before we can solve them."150 The frank discussion below was written with these words in mind.

 

A. Trier of Law Judicial Activism

From the statutory term analysis set out in my article Patent Compensation,151 it is clear that there is a serious problem with patent law legal theory as the direct result of egregious trier of law judicial activism. However, the problem of trier of law judicial activism is not endemic to patent law. Trier of law judicial activism is pandemic to all bodies of law and has as its roots the development of our country after the 1787 Convention. The following discussion sets out the serious problem of trier of law judicial activism.

Each term in a statute has a meaning that is not usually susceptible to a cogent definition.152 The meaning of a statutory term is embodied within the symbiotic relationship between normative rules and legislative factual evidence in the context of the particular circumstances of the litigants appearing before the court.153 The legislative factual evidence is comprised of the intrinsic evidence. Without the legislative factual evidence, the normative rules have no purpose. Without the normative rules, the legislative factual evidence has no meaning. As the trier of law, the judicial department is tasked under their mundane, Marbury v. Madison duty to analyze the intrinsic and extrinsic evidence and draw a conclusion as to the body Congress' meaning of a statutory term.154



 

Figure 4 above shows how the Judiciary usurps Congress' Article I, Section 8, Clause 18 (I-8-18) power to make all laws. If the judicial department uses their own normative rules of evidence, then the judicial department will draw a conclusion as to the unelected judiciary's meaning of a statutory term. The unelected judiciary's meaning of a statutory term then will be implemented by federal judges. This is schematically illustrated in Figure 4 by the arrow drawn from the "Judiciary" to the "Trier of Law Factual Evidence." If the judicial department uses the normative rules of evidence enacted by the elected members of Congress, then the judicial department will draw a conclusion as to the body Congress' meaning of a statutory term. The body Congress' meaning of a statutory term then will be implemented by federal judges. This is schematically illustrated by Figure 2 set out in Part I of this article. Thus, similar to the powers to propose, apply for, and subsequently ratify amendments to our Constitution, whoever controls the rules of evidence concerning the intrinsic and extrinsic evidence controls the Constitutional power to make all laws or the Constitutional power to make amendments, overtly or covertly. As shown in Figure 4, that control and, thus, the power is now in the hands of the unelected judiciary whose rules of evidence "to say what the law is" are firmly grounded in the unlimited imagination of the trier of law such that, in the words of Justice Scalia, "each conscience is a law unto itself."155

There are thousands of examples of the judiciary bypassing Congress' legislative factual evidence to use its own factual evidence to supply the meaning to the terms in Congress' law. The 1993 criminal law case of Smith v. United States156 serves as a typical example of the unlimited imagination of the trier of law.157 In Smith, Tennesseean John Angus Smith received an additional thirty years in prison under 18 U.S.C. § 924(c)(1) after he was arrested in 1989 and tried and convicted of agreeing to sell a MAC-10 submachine gun and silencer in exchange for two ounces of cocaine to an undercover sheriff's officer in Broward County, Florida.158 The Supreme Court addressed whether Congress reasonably gave the term "use" in the phrase "use of a firearm in relation to a drug trafficking crime" under 18 U.S.C. § 924(c)(1) a different and particular meaning from that term's ordinary and reasonable meaning.159 Since Smith was arrested in 1989, the relevant statute for the Smith Court analysis is 18 U.S.C. § 924(c)(1) enacted on November 18, 1988, not on November 29, 1990 or any other date.

Confucius stated that when words lose their meaning, people lose their liberty.160 This is no less true in Mr. Smith's case. Substantially ignoring the tremendous amount of timely and relevant legislative intrinsic evidence of the Congressional Record that the body Congress generated in enacting 18 U.S.C. § 924(c)(1) on November 18, 1988, the Court supported its different and particular meaning holding that a criminal defendant's "trading of a firearm" for drugs "constitutes use of a firearm in relation to a drug trafficking crime" under § 924(c)(1) by conjuring up the following six categories of damning evidence:

(i) UNTIMELY EXTRINSIC EVIDENCE (e.g., post-November 18, 1988): Black's Law Dictionary (6th ed. 1990); United States v. Long, 905 F.2d 1572 (D.C. Cir. 1990); United States v. Harris, 959 F.2d 246 (D.C. Cir. 1992) (by the court); District of Columbia v. Greater Washington Board of Trade, 506 U.S. 125 (1992); The American Enterprise 100 (Jan.-Feb. 1991); Taylor v. United States, 495 U.S. 575 (1990); United States Sentencing Commission, Guidelines Manual (Nov. 1992);

(ii) TIMELY BUT IRRELEVANT EXTRINSIC EVIDENCE: Astor v. Merritt, 111 U.S. 202 (1884); J. McPherson, Battle Cry of Freedom 150 (1988) (anecdotally describing the May 22, 1856 in chambers caning of Republican Senator Charles Sumner, R-Mass. by Democrat Rep. Preston Brooks, D-S.C. for the Republican Senator's anti-slavery stance);

(iii) MIS-CITED EVIDENCE: the original version of 18 U.S.C. § 924(c) (the original, June 19, 1968, version of § 924(c) dealt with seizure and forfeiture, not enhanced penalties);

(iv) IRRELEVANT TRUISMS or TAUTOLOGY: judicial notice that "the words 'as a weapon' [and 'for trade'] appear nowhere in the statute"; judicial notice that "[we can not] imagine any reason why [pre-Nov. 18, 1988,] Congress [would or] would not have wished its language to cover this situation"; judicial notice that Congress did not indicate whether § 924(c)(1) was to have a narrow or broad construction; judicial notice that "[no] court [has] ever held that trading a firearm for drugs [falls within or] falls short of being [within the body Congress' meaning of the term] use";

(v) TIMELY EXTRINSIC EVIDENCE (i.e., lacks proof set out in the written Smith opinion that the cited evidence is timely legislation applicably set out in the Congressional Record concerning § 924(c)(1)): the Webster's New International Dictionary (2d ed. 1950); United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984); United States v. Phelps, 877 F.2d 28 (9th Cir. 1989) (here, the Smith Court cited to pre-Nov. 18, 1988 information within the 1989 Phelps case); United States v. Stewart, 779 F.2d 538 (9th Cir. 1985); United States v. Ocampo, 890 F.2d 1363 (7th Cir. 1989); 18 U.S.C. § 924(d) (May 19, 1986)161; judicial notice that "[pre-Nov. 18, 1988,] experience make ['s it] clear, one can use a firearm in a number of ways"; judicial notice that "No [pre-Nov. 18, 1988,] court of appeals ever has held that using a gun to pistol-whip a victim is anything but the use of a firearm"; judicial notice that "[the introduction of guns] into the scene of drug transactions dramatically heightens the danger to society"; judicial notice that the pre-Nov. 18, 1988 body Congress was "aware that drugs and guns are a dangerous combination"; judicial notice that a gun "can be converted instantaneously from currency to cannon"; judicial notice of "the evident care with which Congress chose the language of § 924(d)(1)"; and

(vi) TIMELY AND RELEVANT INTRINSIC EVIDENCE: the text of § 924(c)(1) (Nov. 18, 1988).162

The meable, easily penetrated arguments above, by which the majority in Smith reached its conclusion, speak for themselves. Without express rules enacted by Congress to compel the judiciary to use all the relevant and timely intrinsic evidence, the judiciary avoids intrinsic evidence and uses the convenient tool of extrinsic evidence and other information as "an escape from the hard work of actual judging."163 This sophistry, in turn, has introduced an unacceptable level of sloth into modern judicial opinions that attacks the Court's essential legitimacy and holds out as disreputable the entire profession of law.164

In particular to Mr. Smith's case, does anyone actually believe that the Court's unwritten conclusory process of selecting from all information provides the damning evidence that our pre-1791 ancestors had in mind when they guaranteed each person their Fifth Amendment right to liberty subject only to due process? How can Congress, judges, and lawyers sit idly by while Mr. Smith and defendants in similar circumstances lose their liberty through mandatory "Smith increases" in their incarceration time based on such damning, ex post facto evidence garnered under the guise of an independent judiciary through "judicial verbicide?"165 The majority in the Smith case felt so secure about their holding that they used approximately 40% of the majority opinion to address the dissent's arguments.

Now that the Smith Court had gutted Congress' meaning of a term in a statute while textually retaining that same term, the destructive, judicial activist process repeated itself. Lines of "common law" cases have started to form under the judiciary's doctrine of stare decisis in the hollowed out, academic fly-covered carcass of Congress' dead statute § 924(c)(1), egg-laden by the opinion in Smith v. United States. So far, the first case to emerge is the 1995 case of Bailey v. United States.166

One day before our country observed the fifty-fourth anniversary of Pearl Harbor Day,167 the Bailey Court announced that Congress' meaning of the term "use" in § 924(c)(1) includes "an active employment of a firearm" that "makes the firearm an operative factor in relation to the predicate offense," even though the Court failed to provide any legislative factual evidence to support its new judicial statutory common law.168 The integument of the Bailey Court's holding is the text of § 924(c)(1), thereby creating the appearance that the holding in Bailey is Congress' law. The subcutaneous matter, however, is judicial law enacted by the Bailey Court as spawned by the Court in Smith v. United States through that Court's usurpation of Congress' power to make all laws.

So now we see that the Court eschewed Congress' meaning of the term "use" under § 924 (c)(1) to develop the Court's own, ex post facto federal criminal common law regarding Congress' term "use." It is hard to escape the assertion that the behavior of those participating Court members in the Smith-Bailey majority violated Article I, Section 8, Clause 18 (Congress' power to make all laws), Article I, Section 9, Clause 3 (no ex post facto laws), Article VI (judge's oath), Amendment V (due process); Amendment VI (informed of the nature and cause of the accusation); and Amendment X (criminal indictment at common law cannot be maintained in the federal courts).169 Is there really any surprise? In the 1964 patent law case of Aro II, members of the Court used wegotism (excessive use of the editorial "we") to help create their own meanings for the terms in the patent compensation statute 35 U.S.C. § 284, only to cause devastating effects on court opinions and the rule of law, on litigants who seek justice, on Congress, and on the entire judicial system.170

In addition to the federal statutes of patent law and criminal law, what about all other areas of federal statutory law? A countless number of these opinions in all areas of law are listed in the treatise Sutherland Statutes and Statutory Construction.171 Most egregiously, what about the very branches of our system of Government? The imbalance of power between the judiciary and the legislature has so degraded our democratic system of Government that both liberal and conservative legislators alike now regard the judiciary as "a higher chamber where a legislator who has failed to persuade his [or her] colleagues . . . can always renew the battle."172 There is no denying Professor Raoul Berger's conclusion that our system of government by Constitution has degraded into a system of government by judiciary.173

In Justice Antonin Scalia's 1997 book, A Matter of Interpretation: Federal Courts and the Law,174 Justice Scalia correctly observed that "[s]ince there are no rules [of evidence] as to how much weight an element of legislative history is entitled to, [legislative history] can usually be either relied upon or dismissed with equal plausibility."175 Since Congress has not supported the earnest members of the judiciary by enacting federal rules of evidence concerning how much weight an element of legislative history is entitled to, Justice Scalia came to the conclusion that "it is [about] time to call an end to a brief and failed [legislative history] experiment [as it currently exists], if not for reasons of principle then for reason of practicality. . . . [P]ouring over the incunabula of legislative history. What a Waste. We did not use to do it, and we should do it no more."176 This pessimism toward separating the legislature's power to make all laws from the aggrandized judiciary makes sense: If Congress does not care about protecting its power to make all laws from usurpation by members of the Supreme Court and other federal judges, why should the earnest members of the Supreme Court continue to frustrate themselves by striving to upset this de facto transfer of power from Congress to the judiciary?

 

B. Current Solutions Are Ineffective

Members of the judiciary and the legislature are implementing the best solutions currently available to combat the judiciary's usurpation of Congress' power to make all laws. By defaming the intrinsic evidence of the elected legislature in favor of the divisive and subversive extrinsic evidence of unelected academics and others, some members of the judiciary hope to prevent a judicial activist from looking over the progression history of a federal bill and selecting only that evidence that supports the pre-determined conclusion of that judicial activist. This defamation technique does not work in the short run or in the long run and leaves open the door to foreign influence in our legislative process.

As for the legislature's futile attempt to hold back the tide of usurpation by the judiciary, the legislature has adopted the tactics of fighting among itself and distorting the judicial selection process. In the belief that judicial activism is driven by conservative or liberal issues, the Democrats and Republicans besmirch each of their judicial champions in diatribes that conclude with the rattling of the saber of impeachment. As pointed out above, judicial activism is power driven, not issue driven. In The Federalist No. 81, Alexander Hamilton argued that the danger of usurpation by the judiciary of Congress' power to make all laws was conditioned on Congress' united resentment: "[t]here never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with [impeachment]."177 Rather than mean unswayed by politics, judicial independence has come to mean unaccountable by politics. Thus, more than anything else, Congress' lack of united resentment has allowed the judiciary to steal Congress' power to make all laws right from under the fighting political factions of Congress.

Congress also distorts the judicial selection process in an attempt to retain its power to make all laws. Rather than use the judicial selection process to probe nominees for their support of Congress as an institution, the legislature probes judicial nominees for their support of Congress in its politics.178 By probing nominees for their political beliefs, the legislature has been able to use its Article II, Section 2, Clause 2 consent power to block all judicial nominees whose political beliefs the party in power does not agree with in the misguided perception that such action will ensure that the law will generate a particular political result subsequent to the date the law was enacted. Using the legislature's oath requirement to coerce future judicial promises from nominees to the bench only results in bitter resentment from the independent-minded judges once they are actually on the bench. Eerily foreshadowed by then-Circuit Judge Ruth Bader Ginsburg in 1981,179 this politicizing of the judiciary has become so hated by the piqued public that the public now refers to unsuccessful judicial nominees as being "Borked."180

Long ago, Congress should have enacted power protecting rules such as those of the STA Method under which the members of Congress need only probe the writings and oral testimony of judicial nominees to assure judicial self-restraint. With such statutory checks in place, the issue in this area becomes whether these judicial nominees will implement Congress' meaning of a statutory term. If the prior writings and present oral testimony indicate that a particular judicial nominee will implement Congress' meaning of a statutory term regardless of that terms' political development, purpose, or effect, that judicial nominee should be regarded as a positive judicial nomination. If, however, the prior writings and present oral testimony do not indicate that a particular judicial nominee will implement Congress' meaning of a statutory term regardless of that terms' political development, purpose, or effect, then that judicial nominee should be rejected. In accord with this is Senator Hatch, who stated that "[j]udicial activism from the left or from the right has plagued this nation, and we should reject nominees who will not apply the Constitution and statutes as written and will instead substitute their own personal preferences."181

Congress should probe for jurists who will support separation of powers and Congress as an institution, not Congress in its politics.182 In this way, Congress may avoid political battles on the two fronts of the judiciary and the legislature and concentrate on the political battles of the legislature. This, in turn, will allow the people of the United States to maintain control over its own basic human or societal needs through congressional elections, peaceful assemblies, and grievance redress petitions. As James Madison wrote, "[Congress and the President's] dependence on the people is, no doubt, the primary control on the government."183

 

C. The Three-Pronged Approach

After an in-depth study of the problem of trier of law judicial activism, I propose a three-pronged approach for Congress and others to take that will eventually lead to uniformity in analyzing the timely and relevant evidence to determine the body Congress' meaning of a term in a statute. Thus, Congress and the people can apply this three-pronged approach to finally vest, in practice, Congress' power to make all laws, both in term and in term meaning, in one Congress.

As the first prong, the jurisdiction of the Court of Appeals for the Federal Circuit should be expanded to include statutory term analysis. The scholarly observations of several Supreme Court Justices aided me in arriving at the first prong. In 1982, Justice Stevens noted that "[t]he [1981 term] Court . . . agreed that it was essential that we confront the question whether the Court should . . . support legislation that would increase the appellate capacity of the federal judicial system."184 Three years later, former Chief Justice Burger proposed a temporary intercircuit panel.185 In 1986, then-Associate Justice Rehnquist set out the four stages of evolution of the role of the Supreme Court to conclude that the fifth stage of a national appellate court is upon us, reasoning that "evolution has been the destiny of the Supreme Court from the time it was first created."186 In 1987, then-Circuit Judge Ginsburg made a plea for legislative review by leaving open the possibility of using an existing court of appeals for the additional appellate tier, but insisted that this additional appellate tier would occupy the existing courthouse facilities of the Court of Appeals for the Federal Circuit.187 Thus, under the first prong, as a temporary solution, Congress would expand the jurisdiction of the Court of Appeals for the Federal Circuit to operate as an additional appellate tier in those circumstances where Congress' meaning of a statutory term is at issue. This, in turn, would allow Congress to divide the Ninth Circuit into the Ninth and Twelfth Circuits, thereby eliminating a concentrated source of judicial activism.

Second, as the permanent solution, Congress should enact the rules of the STA Method into the Federal Rules of Evidence as an essential component of the judicial process. Justice Scalia's conclusion "that the establishment of broadly applicable general principles [by Congress] is an essential component of the judicial process"188 and Justice Ginsburg's call for "[c]learer standards, principles, and guidelines from the legislature"189 helped me to arrive at this permanent solution. The third prong in recapturing Congress' power to make all laws would involve the non-legislative contributions of Congress, law students, attorneys, and the courts as discussed below.

To bring the reader to the point of agreement with the proposed three- pronged solution, I have the unpleasant task of setting out the background leading up to where our system of government is today. We as a people must face our problems head-on. Nonetheless, as a cathartic, emotional release from the exposé on the judiciary set out below, I recommend Justice Kennedy's article Judicial Ethics and the Rule of Law to restore and refresh your spirit with his positive, motivating, and uplifting article on judicial ethics and self-restraint.190

 

1. The Proposed Temporary Solution

At the conclusion of part four in my article Patent Compensation, I rhetorically stated that perhaps there ought to be a Code of Judicial Conduct rule that sets out the duty of candor the tribunal owes toward advocates, reciprocal to Model Rules of Professional Conduct Rule 3.3.191 However, adding more rules of punishment to alter the behavior of federal judges would be futile since these federal judges are appointed for life. As a temporary solution, Congress should divide the Ninth Circuit along with expanding the jurisdiction of the Court of Appeals for the Federal Circuit, where the Federal Circuit will operate as an additional appellate tier to have exclusive jurisdiction of an appeal from a judgment in an action (civil, criminal, or otherwise) for matters in which the meaning of a federal statutory term was decided.192

 

a. Divide the Ninth Circuit

Among all federal appellate courts, the Ninth Circuit has routinely distinguished itself by issuing holdings that are opposite to one or more of the other circuits. The ostensible purpose of this is to set the agenda of the United States Supreme Court through diversity of federal law rather than "diversity of opinion stemming from divergent points of view and sometimes differing strains of geographical philosophy and thought."193 As Senator Hatch stated on September 29, 1997:

Mr. President, these are important matters. I do not believe they should be politicized. I think activist judges, whether they come from the right or left, are judges who ignore [Congress'] law and just do whatever their little old visceral tendencies tell them to do. These are judges who act like super legislatures from the bench who usurp the powers of the other two branches-coequal branches-of Government, the executive and legislative branches. These are judges who ignore [Congress'] written law. These are judges who take their own political purposes to what [Congress'] law should be. These are judges, a number of whom sit on the Ninth Circuit Court of Appeals, who have given me nothing but angst because of their activism. During this last year, 28 of 29 cases on the Ninth Circuit Court of Appeals were reversed by the Supreme Court because of judicial activism.194

For example, in United States v. Brockamp,195 one of the twenty-eight cases to which Senator Hatch was referring, the Supreme Court reversed the Ninth Circuit and upheld the First, Fourth, and Eighth Circuits' holdings that the income tax refund statute 26 U.S.C. § 6511 could not be equitably tolled.196 In Calderon v. Thompson,197 the Court held as a grave abuse of discretion the en banc Ninth Circuit's order recalling its mandate denying the writ of habeas corpus for a condemned rapist/murderer where the Ninth Circuit impermissibly based its order on the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996.198

Article III, Section 1 of the Federal Constitution states that "[t]he judicial power of the United States, shall [also] be vested . . . in such inferior courts as the Congress may from time to time ordain and establish."199 To this end, Congress is in a never-ending struggle to achieve the perfect circuit system, for "[l]aws and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up, and set to true time."200 Dividing the Ninth Circuit into the Ninth and Twelfth Circuits will fix this persistent problem caused by these "independent contractors"201 consistent with maintaining the balance between judicial independence and judicial accountability. Those federal judges whose good behavior has demonstrated a desire to implement the body Congress' meaning of a term in a statute should remain in the Ninth and Twelfth Circuits. Those federal judges whose bad behavior has demonstrated a desire to set the Supreme Court's agenda should be disbursed into the other circuits where their visceral tendencies will reside like the glow of burning embers individually removed from a fire.202 This will help the Supreme Court in its historic function of maintaining uniformity of federal law.

Concerning judicial activism, however, this fix will be temporary since these life-tenured, assured-of-compensation, government employees who are immune from the economic and political forces of our democratic process will still be operating under the same back-in-time common law mind set. Moreover, without more, it would be difficult to divide the Ninth Circuit in a bipartisan way. Dividing the Ninth Circuit in combination with expanding the jurisdiction of the Court of Appeals for the Federal Circuit, however, would allow Congress to divide the Ninth Circuit in a bipartisan way.

 

b. The Federal Circuit as the Additional Appellate Tier

In a 1986 speech at the Florida State University College of Law, then- Associate Justice William H. Rehnquist stated:

I venture to predict that . . . we will in the not-too-far-distant future have another stage in the evolution of the Supreme Court. It will largely relinquish its role in run-of-the-mine statutory [term analysis] cases to a new court . . . which will function in effect as a lower chamber of the Supreme Court.203

Consistent with Justice Rehnquist's prediction, I propose that the Court of Appeals for the Federal Circuit be used in this regard. Using the Federal Circuit as "an additional appellate tier" to "nip in the bud" conflicts among the district courts or courts of appeals concerning Congress' meaning of a disputed statutory term will "enhance the clarity and stability of federal law."204 As "a lower chamber of the Supreme Court," the Supreme Court would manage the docket of the lower chamber and thus serve the docketing needs of the Court.205 As an additional appellate tier, this national court of appeals would have more flexibility in addressing the needs of Congress, litigants, and those affected by the issue before that court.

Whether a lower chamber of the Supreme Court or an additional appellate tier is selected by Congress, it could achieve this goal merely by expanding the 28 U.S.C. § 1291 jurisdiction of the federal circuit to include conflicts among the courts of appeals or district courts concerning Congress' meaning of a disputed statutory term.206 As Chief Justice Rehnquist observed, "what lawyers and litigants in our country's federal courts are seeking to know [is] the meaning of a particular [term in a statute]."207 Expanding the federal circuit's jurisdiction can be done as an interim measure towards a permanent solution, with perhaps a minimal cost increase in the federal circuit's staff (offset by reductions such as appealed cases in the other circuits), and implemented in a bipartisan fashion in conjunction with dividing the Ninth Circuit.

There are many reasons why Congress should enlarge the jurisdiction of the federal circuit as the additional appellate tier to have exclusive jurisdiction of an appeal from a judgment in an action (civil, criminal, or otherwise) for matters in which the meaning of a statutory term was decided. The great deference and respect the Supreme Court gives to the sixteen-year-old Article III Circuit Court,208 its binding effect throughout the nation, its location in Washington, D.C., and most important, the federal circuit's intimate understanding and daily application of the rules of the STA Method as they relate to patent claims makes the federal circuit the ideal choice for this additional appellate tier.

First, it is highly unlikely that the federal circuit would degrade its patent claim construction rules in applying the STA Method to Congress' statutes since the federal circuit has worked so hard to develop the patent claim construction rules that served as the basis for the rules of the STA Method.209 This self-check and self-balance against the judges of the Federal Circuit implementing anything but Congress' meaning of a statutory term makes it less likely that the wrong answer will prevail throughout the nation. Consistent with this, former Federal Circuit Chief Judge Markey dispels any doubts as to the federal circuit's commitment to Congress as an institution in his article, The Federal Circuit and Congressional Intent.210 Moreover, unlike using judges from other circuits to make up this additional appellate tier, there would be little increase in workload for the federal circuit since its holdings concerning the rules of the Statutory Term Analysis Method could apply to its already existing workload concerning patent term analysis in a substantially two-for-one deal. Further, the federal circuit judges would not have to master another body of higher court case law since Congress' meaning of a statutory term is set out in the intrinsic evidence of the Congressional Record and not set out in case law. Since no invention claim drafting style or technical matter is beyond the expertise of a federal circuit judge, the judges on the federal circuit presently are "equipped to master the complexities of . . . labyrinthine statutes that govern highly technical matters."211

At present, the judges on the Federal Circuit are the best equipped judges to "take the statute as [they] find it."212 Should the Supreme Court need to step in, it can benefit from the education gained through the Federal Circuit's unique talents in examining the terms of a public document. Moreover, giving litigants the option to appeal to the Federal Circuit on such matters will increase their faith in the judiciary because of the Federal Circuit's binding effect throughout the nation and its position among the other circuits. There is no reason that Congress should not temporarily "delegate its [responsibility] to promulgate . . . rules [through case law] to the [Federal Circuit as a legislative technique that] tap[s] the experience and expertise of federal judges."213 Who better to bring the unlimited imagination of the trier of law under analytical control than the same Circuit Court that brought the unlimited imagination of the inventors of products and processes under analytical control?214

 

2. The Proposed Permanent Solution

Given the unlimited imagination of the trier of law, along with the future being unknown, Justice Scalia observed that the need for theoretical legitimacy in analyzing a term in a document of the law is paramount.215 The rules of the STA Method meet this need for theoretical legitimacy. Like the Federal Circuit's quick and decisive response to the unlimited imagination of the inventors of products and processes,216 Congress needs to respond to its problems with the unlimited imagination of the trier of law directly and decisively. By enacting the rules of the STA Method into the Federal Rules of Evidence, a permanent solution will be in place to rid our government system of judicial activism in the context of the trier of law.

Adding rules to the Federal Rules of Evidence concerning the evidence that the trier of law may use to find Congress' meaning of a statutory term can be done in a bipartisan fashion as part of increasing the Federal Circuit's jurisdiction and dividing the Ninth Circuit. Although the Supreme Court has the non-exclusive power to prescribe general rules of evidence for cases in district courts and courts of appeals under 28 U.S.C. § 2072(a),217 Congress has retained its own power to prescribe general rules of evidence and make such rules into law. Thus, the congressional commission created to incorporate the rules of the STA Method into the Federal Rules of Evidence could simultaneously study the Federal Circuit's statutory term analysis opinions. Once the rules are enacted into law, the Federal Circuit would perform the same iterative, feedback-loop function until these new evidence laws are rid of any subsequently developed judicial loopholes.

These new rules of evidence concerning Congress' meaning of a statutory term will provide the judicial department with an essential component to carry out their Marbury v. Madison duty to analyze the intrinsic and extrinsic evidence and draw a conclusion as to Congress' meaning of a statutory term. Through these enacted rules, federal judges will implement the elected members of Congress' Article I, Section 8, Clause 18 meaning of a statutory term rather than implementing the unelected judiciary's own meaning of a statutory term clothed in Congress' statutory text. In this way, "the Supreme Court [finally will] resolve disputes over which it has jurisdiction according to the law."218

 

a. Constitutional Authority

To enact the rules of the STA Method into the Federal Rules of Evidence, the Constitution must vest in Congress the power to make all laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power. Although it is rather obvious that Congress has this power, there might be some in the judiciary who would take exception to this since enacting the rules of the STA Method into the Federal Rules of Evidence will take away the judiciary's aggrandized power to dictate the basic human or societal needs of the people of the United States. However, to those hesternopothics who would take this exception, Justice Ginsburg has a message for you: "[i]t will not do to yearn for the good old days, for they will not return."219 Such lamentation by these living constitutionalists may be appropriately styled a jeremiad over the lost authority and splendor of a usurpatious judicial system that many exalted to the control of the President and Congress. Nonetheless, since there is probable cause to believe that those who support judicial activism will disagree that Congress has this power, some discussion is warranted.220

To begin the discussion, we will assume that we do not know that it is Congress who has the power to make all laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power. In general, Federal Government power is either reserved by the People or vested in the Executive, Judicial, or Legislative Branch through the People's document titled The Constitution of the United States. The issue is which of these four entities-People, Executive Branch, Judicial Branch, or Legislative Branch-has the power to make all laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power.

If the People reserved this power, the Federal Government could not operate. If this were true, the People would have amended the Constitution a long time ago to allow the Federal Government to operate. Thus, the People did not reserve the power to make all laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power.

The President may have this power since the President is elected by the People and has veto power under Article I, Section 7, Clause 2 over bills at the end of the legislative process. However, it is unlikely that the President has this power since there is nothing in the Constitution about the President's veto power over bills being more than a "go-no go" power or "sign-return and objections" power. Moreover, this would not make any sense. Since the President lacks any portion of Congress' power to make all laws in both term and term meaning, there is no reason the Constitution would vest in the President the power over the meaning of terms in a statute. Thus, the People did not vest in the President the power to make all laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power.

The Judicial Branch could not have this power since federal judges are not elected by the People. Moreover, the Judicial Branch has no legislative power over bills as they progress their way through the legislative process. In any event, this would not make any sense. To help understand that the Judicial Branch could not have this power, the rules regarding the use of a dictionary serves as a good analogy.

A dictionary is a reference book containing an alphabetical list of terms, with a meaning given for each term. One rule in using a dictionary is that the meaning of a term in a dictionary is infraposed subjacent to the main head word entry, i.e., the term being defined. This is known as the sub verbo dictionary usage rule. If the judiciary had the power to make all laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power, the judiciary could look up the term "usurpation," for example, and use its power to make all laws to supplant the sub verbo dictionary usage rule with the judiciary's unwritten rule of paging back to the meaning of the term "interpretation," for example, to conclude that, as a matter of law, usurpation means the method of discovering and ascertaining the body Congress' meaning of a term in a statute.

Such behavior is not as far-fetched as it seems. In Katzenbach v. Morgan,221 the Supreme Court overturned its own meaning of a term in the Constitution in favor of Congress' political meaning as set out in a statute enacted by a bare majority in Congress.222 In the majority opinion written by Justice Brennan, it is likely that the 1966 Katzenbach Court believed that it could continue unmolested in its usurpatious ways by occasionally sharing with Congress the imperial bounty gained both from taking such a pessimistic view of our Constitution and ignoring the several States contributions to the meaning of each Constitutional term.

Thus, like frogs whimsically hopping from one lily pad to another or Goldi Locks wittingly evaluating beds to lie in, giving the judiciary the power to make all laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power, in combination with the judiciary's duty to say what the law is, would allow the judiciary to make itself immune from the checks and balances inherent in our Constitution. Thus, this area sits outside judicial independence. Here, the judiciary is not the master of its domain. Emphatically, the People did not vest this power to make all laws in the judiciary.

As an aside, the above dictionary usage example serendipitously has revealed another lesson: makers of laws, similar to makers of dictionaries, must accompany a term and the meaning of that term with a third item. That third item is the evidentiary laws concerning the production and use of intrinsic and extrinsic evidence when analyzing and drawing a conclusion as to the maker of the law's meaning of that term.

Thus, by default alone, the People must have vested the power to make all laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power in the Legislative Branch. The text of the Constitution bears this out. Under Article I, Section 8, Clause 18, Congress has the power to make all laws necessary and proper for carrying into execution the Government's vested powers. One of the powers vested in the Government of the United States is the power to make all laws. The Constitution vests the power to make all laws exclusively in the Congress under Article I, Section 8, Clause 18. Thus, the Constitution authorizes Congress to make all laws necessary and proper for carrying into execution Congress' exclusive power under Article I, Section 8, Clause 18.

Congress may expressly delegate responsibility in this area but always retains authority. Congress' delegation of its exclusive power to make all laws is valid only when expressed by Congress, not the judiciary, and then only when that expression is clear and convincing, such as by statute. Moreover, the Constitution's term "all laws" prevents the People, the Executive Branch, or the Judicial Branch from sharing this power with Congress through any distinction between statutory law vs. common law, substantive law vs. procedural law, or otherwise.

Even with the constitutional authority to enact the rules of the STA Method into the Federal Rules of Evidence as the beginning of the end of trier of law judicial activism, it is still important for Congress to know what it is up against. There is a tremendous amount of government power that Congress perceives that it has as guaranteed by our Constitution but in fact does not, as evidenced by the 1964 plurality dicta view of Aro II, the 1993 case of Smith v. United States, and the countless cases listed in the treatise Sutherland Statutes and Statutory Construction.223 In fact, in a 1992 empirical study revealing what the Supreme Court actually does in analyzing Congress' statutes, the study concluded that floor discussions appear in a paltry 16.9% of the Court cases, that the text of the statute unbelievably appears only in 84.1% of the Court cases, and that reports appear in only 32% of the Court cases.224 Where Congress' power to make all laws is and how it got there is the next topic of discussion.

 

b. The Judicial Activist Movement

To understand why in fact Congress lacks legislative power concerning the meaning of a statutory term while retaining the power to enact the words of that term into law, it is necessary to begin the analysis with the year 1787 at the Constitutional Convention in Philadelphia that lead to our Government by Constitution replacing the Articles of Confederation. Anticipating a productive weekend, the Constitutional Convention opened on Friday, May 25, 1787, with a quorum of seven of thirteen States. Over the next four months, five more states joined the Convention. On Monday, September 17, 1787, all twelve state delegations approved the Constitution (Rhode Island was not represented). New Hampshire's Saturday, June 21, 1788 ratification satisfied Article VII by putting the number of those ratifying the Constitution at nine States. With the first Congress convening in New York City on Wednesday, March 4, 1789, the Constitution was declared in effect on this day.225 Thus, as of 1789, the People vested the power to make all laws in Congress under Article I, Section 8, Clause 18.

Eleven months after the Constitution was declared in effect, the Supreme Court convened for the first time on Tuesday, February 2, 1790.226 It was eight years later in the 1798 case of Calder v. Bull that Justice Samuel Chase planted the seeds of judicial activism into the opinions of the Supreme Court that would eventually grow into today's Judicial Activist Movement by promoting "the great first principles of the social compact."227 Five years after Calder v. Bull, the Court self-imposed the duty of analysis on the judicial department by issuing Marbury v. Madison.228

Since its formation in 1789, the judiciary aggrandized itself at the expense of Congress' power. In those early years, the judiciary usurped Congress' power to make all laws only in those areas where Congress lacked the sophistication to enact law. With this excess power, the judiciary "enacted" laws out of necessity to keep the United States moving forward. Although not in accord with Article I, Section 8, Clause 18 of the Constitution, our country had no other means of developing legal theory other than through the unlimited imagination of the trier of law on a case-by-case basis. This process was deemed the common law.229

The process of the common law in the United States is straightforward. Executive agencies and a relatively small number of people conceive ideas and reduce them to practice.230 These practices are eventually challenged in a court of law. The Supreme Court declines to review lower court rulings until enough rulings are made in the lower courts. The Supreme Court eventually hears a case on this practice and makes a ruling that effects the entire nation. Since the Court's ruling in this area has the "purpose and effect of altering the legal rights, duties and relations of persons . . . outside the Legislative Branch,"231 executive agencies and the people adjust their practices to conform to the Supreme Court's ruling as best as they can. The new practices based on this ruling are always challenged in a court of law since the Court's ruling in this area is not the will of the People through their elected representatives. Thus, the Court sets into motion an iterative judicial process that is repeated over time until the Supreme Court has altered the basic human or societal needs of the nation through its rulings. Based on these generational changing needs of society as driven by the unelected members of the Supreme Court, a common consensus is formed as evidence through the common action of society conforming its behavior to the will of the Court. Properly called negative law in contrast to positive law,232 this common consensus has taken on the moniker "common law" and derives its authority in the United States "solely from . . . the judgments and decrees of the courts,"233 rather than from the Federal Constitution.

At this point (or at any point the legislature chooses), the legislature has enough information to begin their discussions towards making a law under Article I, Section 8, Clause 18. The process of making law is very similar to the process of making a patent claim in a patent document. Under patent law practice, a patent attorney submits a patent application document to the United States Patent and Trademark Office (hereinafter "PTO") to be reviewed by a patent examiner through public record discussions per the various patent statutes. The three writing requirements of enablement, best mode, and claims for a legal invention embodied within the patent document are set out in the following patent statute:

(1) The specification (a) shall contain a written description (i) of the invention, and (ii) of the manner and process of making and using it, in such full, clear, concise, and exact terms as TO ENABLE any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and (b) shall set forth THE BEST MODE contemplated by the inventor of carrying out his invention. (2) The specification shall conclude with ONE OR MORE CLAIMS particularly pointing out and distinctly claiming the subject matter which the applicant regards as his invention.234

The patent application document is sent back and forth between the patent examiner and the patent attorney with written comments. This written dialogue creates a public record-a "legislative" or "prosecution" history. Through this history and other written, public documents, the matter and scope of a term in a patent claim can be discerned. When the patent document complies with various patent law statutes, the PTO issues the completed patent document, which in a sense "enacts" the patent claims into "law."

Congress' public record discussions are similar to the interactions between the patent attorney and the patent examiner discussed above. A member of Congress submits a bill to the U.S. Congress to be reviewed by committee and Congress as a whole through public record discussions. The public record discussions of Congress may occur in committee meetings or on the floor of Congress with the ultimate goal of a proposed law. Floor discussions, bills, and reports are applicably set out in the Congressional Record. The relevant and timely Congressional Record entries conclude with the text of the proposed law that particularly points out and distinctly claims the subject matter that the Constitution, through Congress, regards as the claimed law. The President's signature on Congress' claims enacts the claims into law. At this point, all the factual evidence has been removed from the realm of the common law and is placed into or is excluded from the Congressional Record along with all the other legislative factual evidence to create the finite, intrinsic evidence identified by the applicable Congressional Record entries. In just about all cases, this intrinsic evidence is a sufficient, written description of the terms of the law that enables any person to conform their behavior to the law, just as a patent specification "enable[s] any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same."235

It is important to note here that Congress only requires the inventor to set out the subject matter of each term in a patent claim in the text of the one or more patent claims under § 112(2) above. Under § 112(1)(a) and (1)(b) above, the scope of that subject matter may be set out in the written description part of the specification as limited by any disclaimers made during the prosecution history of the patent application. In the same way, the Constitution only requires Congress to set out the subject matter of each term in the text of the federal statute. The scope of that subject matter is set out in the written description part of the Congressional Record as limited by any disclaimers made during the progression history of that statute application (e.g., the bill).

For approximately the first 100 years of our country, the judiciary's aggrandization through the process of the common law was slow and sporadic, but nonetheless increased at a constant rate. In 1881, Oliver Wendell Holmes judicially codified and made this process systematic and scientific through his book The Common Law.236 His book rang in the era of orderly common law development of American jurisprudence. As the Einstein of law, Holmes single-handedly compensated for Congress' lack of legislative sophistication in many areas. His universal legal theory allowed Holmes to understand at once how a law was made, analyzed, and enforced. Along with the standards of integrity he set while sitting on the Court, Holmes' panoptic ability to perceive our system of Government single-handedly allowed him to develop law worthy of an entire elected Congress and explains why he was one of our greatest jurists.

Through his book and his Court opinions, Holmes rediscovered what the People of the United States already knew at the formation of our country: that a very high level of integrity is necessary to make law. However, unlike the Constitution vesting the power to make all laws in one Congress, Holmes failed to take into account the general human nature of judges when he assigned the power to make law to the educated judiciary as "expert decisionmakers"237 through his universal legal theory. Holmes perceived that the standards of integrity he set as a condition for a judge to develop law would be a floor, the minimum above which all judges would conduct themselves. However, judges are not deluded by their own abilities into believing that they can attain Holmes' grandeur. Thus, the standards of integrity that Holmes set have become the goal a judge is to strive towards: a ceiling rather than a floor.

Human nature being what it is, few judges have achieved the very high standards of integrity set by Holmes; the behaviors of just about all judges have fallen below these standards. There is nothing wrong with the vast majority of judges; it is just that the very high standards of individual integrity of one of this country's greatest jurists do not accord with general, individual human nature. Moreover, few, if any, individual government employees have ever substantially achieved Holmes' standards. Holmes' standards of integrity are still important, however. They serve to establish that only a single, large body of people, in a collective, can consistently maintain themselves above the very high standards of integrity necessary to make law. The reason being that the majority collective consistently brings out the best in human nature. Moreover, Holmes' standards serve as a benchmark that can be used to identify the origins of the Judicial Activist Movement.

The first judges whose behavior fell well below Holmes' standards of integrity were the first contemporary judicial activists. Through the manipulation of Holmes' succinct and penetrating justifications, these judicial activists, at first few in number, began to accelerate the judiciary's aggrandization process with their new tool, Holmes' "The Common Law" and its progeny of rationales. This initial acceleration remained substantially unchecked until the drastic decline in the national economy that followed the 1929 crash of the stock market. Along with the rest of the world, the United States was thrown into the Great Depression.

Lifting the United States out of the Great Depression could only be achieved through a level of cooperation between Congress and the President that was previously unknown to the Judicial Branch. As one of the first signs of a new era of synergism between these two branches of government, the 1932 Congress enacted the first legislative veto clause by giving President Hoover "the [responsibility] to reorganize executive departments subject to a one-House veto."238 Later, this and other efforts toward cooperation between Congress and the President would be quashed by the Court.239

Judicial legislative power derives from ensuring diversity between Congress and the President, not cooperation. Witnessing Congress and President Roosevelt's New Deal of the 1930s first hand, the judiciary realized that they "ceased to be the primary makers of the law in the [textual] sense in which they 'legislated' the common law."240 Desperate to retain its usurped portion of Congress' power to make all laws that allowed the judiciary to control and dictate the basic human or societal needs of the People of the United States, but fearing that Congress and the President would diminish the impact of their prestigious positions, the judiciary signaled to Congress and the President in the 1937 Supreme Court case of West Coast Hotel v. Parrish241 that the judiciary would now permit these two branches to enact the terms in a statute. The Federal Government was not alone during this period in its receipt of judicial promises of self-restraint. In the 1938 case of Erie R.R. Co. v. Tompkins,242 the Court stated that "[t]here is no federal general common law,"243 reasoning that federal general common law is "an unconstitutional assumption of powers by the Courts of the United States."244

Not stated by the judiciary in the strongly-worded case of West Coast Hotel was that the judiciary would misuse legal analysis to implement the judiciary's own meaning of the terms in a statute while maintaining the appearance that the judiciary was implementing Congress' meaning of a term in that same statute. In other words, by abusing learning, judicial activist have mislead through scholarly-sounding deception. Thus, hidden in the open, contemporary judicial activism was the transmogrification of the nineteenth-century common law traditions. As of 1937, the era of orderly common law development of American jurisprudence was over. The era of the Judicial Activist Movement had begun.245

In the sixty years following the 1937 case of West Coast Hotel, Congress and the President worked closer and closer together to enact statutes that aided the basic human or societal needs of the People of the United States. Over these sixty years of positive cooperation between the sessions of Congress and the succeeding Presidents, the aggrandization process of contemporary judicial activists took on a desperate acceleration. In the collective, a movement formed. Most of the judiciary fell in line with the aggrandization process since they were either bound by precedent or directly enjoyed the bounty that flows from usurping Congress' power to make all laws. Following the judiciary's lead, most of the legal academic world fell in line with the judiciary either individually or through legal organizations since, as fagins of Congress' power, they were permitted by the judiciary to share indirectly in the imperial bounty taken from Congress.246 Most politicians, economists, religious leaders, social scientists, intellectuals, and artists fell in line with the judiciary because they naturally assumed that the checks and balances maintained over their own professions were no greater than the checks and balances maintained over the judiciary in its legal profession. As will be shown next, even venerated legal sources, such as the label of a clause in the Constitution, constitutional law books and courses, and Black's Law Dictionary, promote judicial activism.

Labeling Article I, Section 8, Clause 18 as the Necessary and Proper Clause promotes judicial activism. Generally, articles, sections, and clauses of the Constitution take on unofficial identification labels that serve to call to mind the main thesis of that article, section or clause. Before 1926, there was no agreed upon label for Clause 18 of Article I, Section 8-Congress' vested power to make all laws. However, Justice Brandeis' 1926 reference to Congress' power to make all laws clause as the Necessary and Proper clause247 became the label of choice and was universally adopted by the courts as well as received Congress' imprimatur.248 The judiciary's reference to Article I, Section 8, Clause 18 as the Necessary and Proper clause de-emphasizes the main thesis of Clause 18: that it is Congress who has the power to make all laws. Over time, this power de-emphasizing mark has promoted judicial activism at the deprivation of Congress' power to make all laws by focusing on the Court's control over the limits of Congress' power to make all laws rather than focusing on the power itself. Thus, to call to mind the main thesis of Clause 18 and to make it clearer that it is Congress who has the power to make all laws, I recommend that Congress ensure that all printed documents within its control refer to Article I, Section 8, Clause 18 as the Power to Make All Laws clause rather than the Necessary and Proper clause.249

Constitutional law books and courses are other legal sources that promote judicial activism, in particular through their coverage of separation of powers. "Under the constitutional doctrine of 'separation of powers,' one branch [of government] is not permitted to encroach on the domain or exercise the powers of another branch."250 As a result of the Judiciary's Marbury v. Madison duty to say what Congress' law is, the threat of one branch encroaching on Congress' power to make all laws is interaulic; that is, the threat exists only between Congress and the judiciary. Few would disagree that the constitutional law issue of separation of powers between Congress and the judiciary is rarely, if ever, taught in law school and only then taught by focusing on the independence of the judiciary rather than the judiciary's usurpation of Congress' power to make all laws.

A good representation of what is being taught in constitutional law courses at the more than 180 United States law schools is the constitutional law book used in these courses. Steve Emanuel's 808 folio paged Emanuel Law Outline of Constitutional Law proportionally summarizes the nine leading constitutional law books as used in United States law schools.251 Within the 808 folio pages, Emanuel gives exactly one and a half carefully worded sentences to separation of powers between Congress and the Judicial Branch regarding the judiciary's usurpation of Congress power to make all laws. He writes:

Similar separation-of-powers issues can be presented by action that takes place at the boundary line between Congress and the Judicial Branch, or the boundary between the Executive and Judicial Branches . . . . [F]unctions that are the appropriate job of the other two branches cannot be given instead to the Judicial Branch.252

As Emanuel poignantly observes, "separation issues relating to the Judicial Branch do not arise very often."253 Of course not. If judicial activists actually allowed this issue to be adjudicated, the judiciary would lose its usurped power that it worked so hard to take from Congress. Moreover, imagine the system of government we would have today if constitutional law professors actually taught law students that it is unconstitutional for the courts to usurp Congress power to make all laws. A dirty concept to some, the effect would be to move the United States away from a government by judiciary towards a Republican form of government.

The most seemingly innocuous legal source promoting judicial activism is Black's Law Dictionary. Aside from its delicate dance in selecting definitions of "common law" in the United States,254 this authoritative law dictionary defines the legal term "interpretation" as "[t]he art or process of discovering and ascertaining the meaning of a statute . . . or other written document."255 However, a statute or other written document, such as the United States Constitution, is made up of many individual terms, each having its own, unique meaning. With each term in a statute or the Constitution having its own, unique meaning, there cannot be an overall "meaning" of these written documents as a matter of law. Since a statute and the Constitution has no overall meaning, it is impossible to interpret a statute or the Constitution for that overall meaning. Only the individual terms within these written documents can be "interpreted" by the judiciary in the sense of analyzing the intrinsic and extrinsic evidence and concluding as to that individual term's meaning.

Since it is impossible for a judge to do statutory interpretation or constitutional interpretation as defined by Black's Law Dictionary, this popular definition of "interpretation" presents judges with two equally plausible options: judicial self-restraint or judicial activism.256 As for judicial self-restraint, that unchecked judge can turn right and analyze undisputed public record concerning the individual term in the document that is at issue before the court. Just as permissible under the impossibility created by Black's Law Dictionary, that unchecked judge can turn left and "interpret" the so-called overall meaning, purpose, belief, or motive of the document or its drafters.

Contradicting the often cited Black's Law Dictionary definition of "interpretation," Chief Justice Marshall made it clear that an axiogolist's inquiry by the judicial branch into the meaning, purpose, belief, motive ("degree of necessity"), or intent behind Congress' execution of its powers "would be to pass the line which circumscribes the judicial department, and to tread on legislative ground."257 He went on to hold that "[t]his court disclaims all pretensions to such a power."258 Concepts such as meaning, purpose, belief, motive, or intent of a statute, the Constitution, or the document's drafters, are nebulous enough to allow the judicial activist to draw any conclusion desired by that living constitutionalist, irrespective of the drafter's meaning of the terms in that document. Congress does not enact its intent into law; Congress enacts the meaning of the terms of a statute into law. Thus, the sinistral path of the judicial activist is paved by those who use the term "statutory interpretation" or the term "constitutional interpretation."

Judges and lawyers neither interpret laws nor reconstruct legislators' intentions. Applying the Issue - Rule - Analysis - Conclusion (IRAC) Method under the Marbury v. Madison duty, judges and lawyers analyze and conclude as to Congress' meaning of a statutory term. Because judges and lawyers analyze, this article uses the word analysis, not interpretation, hermeneutics, construction, construal, dittology, explication, stichomancy, exegesis, or any other similar word that has been misused by judicial activists to aggrandize the judiciary through corrupting analytical methods (such as the dynamism method) while enabling the judiciary to create the appearance that judicial decisions are constrained. Thus, I designed the marks "Statutory Term Analysis" (STA) and "Constitutional Term Analysis" (CTA) to provide an alternative to unintentionally promoting the Judicial Activist Movement through use of the terms "statutory interpretation" and "constitutional interpretation."

Since the late 1950s, the issue of judicial activism among the courts and the public has grown exponentially. As observed in 1976 by U.S. News & World Report, "[m]any constitutional experts say the origin of the recent trend toward judicial activism can be traced to . . . the 1950s."259 Senator Hatch observed ten years later that, "unfortunately, an awful lot of our judicial system over the last 25 years has consisted of judges who have been making wholesale laws . . . . [Y]ou can't avoid looking at constitutional law over the last 25 years without realizing that that what's happening in our country."260 Moreover, in his 1996 best-selling book Slouching Towards Gomorrah,261 Judge Robert Bork agreed with Professor Lino Graglia, who stated that the "thing to know to fully understand contemporary constitutional law is that, almost without exception, the effect of rulings of unconstitutionality over the past four decades has been to enact the policy preferences of the cultural elite."262

A statistical search of the LEXIS databases supports these observations. In 1959, judges used the phrase "judicial activism" or "judicial activist" in two case opinions.263 During the 1960s, judges used these phrases in fourteen opinions.264 During the 1970s, sixty different opinions of judges referred to this problem.265 During the 1980s, the amount of judges referring to "judicial activism" or "judicial activist" more than tripled the previous decade's record to a total of 196 opinions.266 And between 1990 and 1997, judges referred to "judicial activism" or "judicial activist" in 207 case opinions,267 with a conservative projection of well over 300 cases by the year 2000. Moreover, beginning in 1975, the five-year average of references in news articles by the public to the phrase "judicial activism" or "judicial activist" increased from five to sixty-one to 200 to 312 to last year's 1,349 references.268 Politicians would be wise to take note that, as of this writing, judicial activism is a significant, exponentially-growing political issue that must be dealt with.

It is clear that the cumulative effect of judges, lawyers, academics, politicians, economists, religious leaders, social scientists, intellectuals, artists, and legal sources, all supporting judicial activism, has placed our system of government in a current state of jeopardy. All told, over the past 211 years, the judiciary's usurped legislative power has grown beyond imagination. As a direct result of the Judicial Activist Movement, the United States system of government presently operates under a dangerous imbalance of power between Congress and the Judiciary, with the problem only getting worse.

There is a solution to the Judiciary's hegemony over Congress. At the start of the United States, Congress lacked sophistication in just about all areas necessary to enact law. Over the past 211 years, however, Congress has grown in both legislative wisdom and experience. This growth has allowed Congress and the President to codify more and more common laws into statutes and enact bills into statutes not based on common law. In addition, the bicameral discussions over the past 211 years have brought into relative collegial harmony the Article I, Section 5, Clause 2 legislative rules concerning the Congressional Record as well as the Article I, Section 5, Clause 3 Congressional Record itself. Modern technology, such as the Internet and CD-ROM, allows Congress to instantaneously make available a searchable, electronic copy of the 1789-to-present Congressional Record to each United States citizen at an insignificant cost. Computer search techniques make digesting the massive amounts of data within the Congressional Record relatively easy. Moreover, the rules of the STA Method provide the essential component of the judicial process that allows each citizen the ability to analyze the relevant and timely document evidence to determine Congress' meaning of a term in a statute. At present, the People, Congress, and the President have reached a point of legislative sophistication that will allow us to enforce the constitutional provision that exclusively vest the power to make all laws in Congress. However, there remains one obstacle to the Constitution: the judiciary's present state of aggrandized power and unchecked usurpation of Congress' legislative power.

The question of constitutional magnitude is whether we, as a modern, sophisticated people, desire for the unlimited imagination of the trier of law to continue to supplant Congress' document evidence in giving meaning to a statutory term or whether we as a people desire for Congress' document evidence to unseat the unlimited imagination of the trier of law in giving meaning to a statutory term. Fortunately, we have already answered this question at the formation of the United States by allocating the power to make all laws to the Congress through the act of ordaining and establishing Article I, Section 8, Clause 18 of our Constitution for the United States of America.

The People of the United States clearly saw the dangers in allowing the judiciary any unchecked lawmaking power. As Judge Peters concluded in 1793, "in despotic sovereignties, force may immediately be applied; but here ours is a government of laws," and not of men or women.269 By vesting the power to make all laws in Congress through the United States Constitution, the people of the United States structured our system of government to keep the life-tenured, assured-of-compensation judiciary from turning into a despotic sovereignty. In short, the men and women of the judiciary never had the power to supply their own meaning to a term in a statute. Moreover, outside the expressed pleasure of Congress, the judiciary never had the power to use unwritten evidentiary rules concerning the production and use of intrinsic and extrinsic evidence, ex officio or otherwise. Once Congress confines the intrinsic evidence to the Congressional Record and enacts into statutory law a common law concept, Congress has removed all freedom with which the judiciary would construe and apply a common law principle.270

Since the New Deal of the 1930s, contemporary judicial activists have cloaked their actions in the term "common law" to trade off the goodwill Chief Justice Holmes built up around that identifying mark. However, unlike the common law of Justice Holmes' time, contemporary common law is a self-justification for the judiciary to aggrandize itself at the expense of the people, Congress, and the President. Despite giving itself free reign with Congress' power to make all laws, the judiciary has never arrived at a contemporary common law where the meaning of each of the terms in this common law were self-defined. The higher courts continuously fail to address specific issues in its common law that subsequently appear before the lower courts or do so ambiguously. If the judiciary intends a result, why don't they just put its meaning into their common law? Unlike the Legislative Branch, the Judicial Branch appears to lack their own "delicate dance of the legislative process."271

The answer is that the judiciary continues unchecked with Congress' power to make all laws. They have their own "delicate dance" among themselves and, more often than not, allow their fresh-out-of-law-school, unappointed law clerks to write the judicial opinion,272 even though these "puisne judges"273 are subject to the same dastur political influences as the legislative aids who supposedly "abuse the system" by writing congressional committee reports on behalf of members of Congress, as arrogantly asserted in several, high level judicial opinions that I read in preparation for this article.

Since the judiciary's contemporary common laws are unclear, imprecise, gap-ridden, hazy, deficient, diffuse, uninformative, defective, and unknowable,274 the public has little to no chance of conforming its behavior to the judiciary's laws. It is the judiciary's inability to say exactly what it means under its common laws that causes further litigation that results in further "common law" that, in turn, results in further litigation that ultimately forces Congress to take money from important human or societal programs to litigate the Government's endlessly growing lawsuits. The judiciary's response to all this is to use political correctness and deem its ethereal, agathistic common law process as "living" or "growing," rather than its correct term, usurpation. When all is said and done, being the authors of contemporary common law means never having to say you are sorry. There is always a new common law waiting in the wings to replace the old, discredited common law; there is always more taxpayer money for the Government to use to finance the judiciary's usurped play toy.

Congress needs to act now. As then-Circuit Judge Ginsburg observed in 1981, "the need for interventionist decisions . . . would be reduced significantly if elected officials shouldered their full responsibility for activist decision making,"275 and later in 1983, "[a]ll federal courts would be aided, of course, by a more activist Congress willing to make difficult policy choices and state them plainly. Too often, legislators unwilling 'to stand up and be counted' pass the buck. They invite, indeed force, activism elsewhere by ducking the hard questions."276 More important, if Congress fails to act in the face of inevitable globalization, a door will remain open for non-citizen litigants to alter the vital support columns of our government through manipulation of court opinions while leaving the greater part of our government system standing.

The Constitution authorizes Congress to make all laws necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power. The irony is that although Congress has vigorously exercised its Clause 18 power to carry into execution just about all of the government's vested powers,277 Congress has failed to make any written evidentiary rules to carry into execution its vested Article I, Section 8, Clause 18 power. It is this failure by Congress to protect its own power that has allowed the poaching judiciary to obtain excessive power to the deficiency and disruption of Congress, primarily through the Court's living constitutional law.278

For example, the Court's 1857 constitutional law departure from the terms of the Constitution to create a right to hold slaves that helped spur the Civil War was the fault of the early nineteenth century Congress.279 Congress is to blame for Justice Holmes' inability above his own human nature in 1927 when he ordered the forced sterilization of a woman under the care of the state, as part of the Court's living constitutional law.280 Likewise, the Court's early twentieth century constitutional law departure from the terms of the Constitution to protect big business at the expense of the health and safety of labor and consumers, was the fault of the Congress of that period.281 Moreover, Congress is to blame for the years after 1896 that the unchecked and independent judiciary ignored the terms of the Constitution, and participated in advancing one class of Americans at the expense of another under the Court's constitutional law doctrine of separate but equal.282 There can be no question that it is the Court's unchecked, living constitutional law that stains both the Constitution and the bloody shirt of Brown.

Congress has always had the vested powers to prevent these and other abuses by the Court, but it has never acted. If Congress had begun early on to exercise its power to make all laws and enacted evidentiary rules concerning the trier of law, the checks and balances would have been in place to prevent the Court from officially instituting the evils outlined above. These lessons from history demand that Congress act now by "elevat[ing] the rule of law above the tempers of the times,"283 to prevent a return to the past, through future abuses by the currently unchecked trier of law.

It is clear by now that the lack of written evidentiary rules have left the temptation of short-term political gain within the unchecked grasp of the peccable trier of law. The belief that judges can restrain themselves from this temptation because they are great human beings fails to account for human nature. Justice Holmes failed to understand this in his universal legal theory and thus only accounted for his own human nature and not the human nature of judges in general.284 His de facto, unconstitutional assignment of the power to make law to the educated judiciary as expert decisionmakers is one reason why our country presently faces the serious imbalance of power between Congress and the judiciary.285

The people of the United States understood the human nature of judges and thus vested the power to make all law in one Congress. As Senator Orrin Hatch succinctly stated in 1992:

The Framers of the American Constitution had no illusions about human nature. Because the experience of man taught-and I should add, still teaches-that to concentrate governmental power is to invite tyranny, the Framers divided power horizontally among a unitary executive, an independent judiciary, and a bicameral legislature, and vertically between the national government and the states in the form of federalism . . . . [H]uman nature counsels against dependence on self-restraint by the rulers.286

The people of the United States did divide the people's power as Senator Hatch stated. Moreover, through our written and venerated Constitution, the people appointed Congress to make rules that would check the judiciary's temptation of short-term political gain, rather than depend on the judiciary's self-restraint.287 As Thomas Jefferson cautioned at the early stages of our Country, "[i]n questions of power, then, let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution."288 Justice Kennedy echoed Jefferson's sentiments 198 years later: "Judges need rules just as do the citizens whose cases we hear. In the Federalist Papers, written to urge ratification of the Constitution, James Madison said, 'If men were angels, no government would be necessary.'"289 And, as the Bible decrees, "the law is not made for a righteous man, but for the lawless and disobedient, for the ungodly and for sinners."290

Congress is vested with the exclusive power to make all laws.291 The Constitution does not vest any power in the judiciary to make law. Rather than make law, the Court is directed by the Constitution to hand down legal precedent by applying litigant factual evidence to the terms in Congress' statute. However, Congress has never enacted rules into law that would check the trier of law. This omission has brought our system of government to the point where a Supreme Court Justice can unashamedly boast the jactitation that "[i]t is a proper part of the judicial function to make law as a necessary by-product of the process of deciding actual cases and controversies."292 Certainly, as Senator Hatch states, "federal judges have expanded their definition of rights and of their own authority beyond what the Constitution permits, . . . have made their own power pervasive in our society, [and] . . . today exercise powers that would have rendered the Framers of our Constitution speechless."293

In all fairness to Congress and its development, however, until the STA Method, no legal scholar over the past 211 years had conceived of rules that could check this temptation and control the development of the common law. Most living constitutionalists, as part of their payment to share in the imperial bounty that comes from taking a pessimistic view of our Constitution, have surreptitiously denied that such rules would be constitutional. Nevertheless, to all those who point the finger, the blame game is over. The judiciary's inability to confine itself to its assigned responsibilities rests squarely in Congress' enabling lap.

The time has come for our country to take the final step in moving from the common law system of an aggrandized judiciary that has, at times, served us well in the past, to the statutory system of the elected legislature that will carry us into the future on the shoulders of the original principles of democracy as put forth by the People in Article I, Section 8, Clause 18. Only in those circumstances where Congress provides "the limitation of a prescribed standard," can the judiciary conclude that Congress has delegated a part of its legislative responsibility to the judiciary.294 Thus, by retaining authority and control over its power to make all laws in those limited circumstances where Congress "tap[s] the experience and expertise of federal judges" by temporarily "delegat[ing] its [responsibility] to promulgate . . . rules to the courts," federal judges will "avoid . . . lawmaking" when faced with "add[ing] new stitches in the open fabric of our statutory and constitutional law."295 Only by enacting the rules of the STA Method into the Federal Rules of Evidence as necessary and proper for carrying into execution Congress' Article I, Section 8, Clause 18 power, will the excessive power of the Supreme Court fill in the deficient power of Congress to balance and bring to separation, coordination, and cooperation the powers granted by the People under our Constitution to these two branches.

 

c. The STA Method Advantage

As my analysis in Patent Compensation demonstrates,296 the trenchant and penetrating analytical structure of The STA Method addresses Justice Scalia's concerns with statutory term analysis by providing, among other things, the explicit rules as to how much weight an element of legislative history is entitled to. By cutting to the heart of the matter with respect to federal statutes, the STA Method will aid common-law trained judges in implementing the body Congress's meaning of a statutory term, thereby shifting the remainder of Congress' power to make all law from the judiciary back to Congress. In the modified words of Justice Scalia, only by Congress announcing rules of evidence will the trier of law finally be hedged in.297 In other words, Justice Scalia's continuing struggle to hold back the tide of judicial activism by stigmatizing the "'soft science of legislative historicizing' as the 'St. Jude of the hagiology of statutory construction'" until something better comes along,298 may finally come to an end with the announcement of the rules of the STA Method as the quaesitum for which he and a handful of others have been searching.

The rules of the STA Method are a component of our system of Government by Constitution that has been missing for the past 211 years. Enacting the rules of the STA Method into the Federal Rules of Evidence will have an overall positive impact on our system. In particular, the judiciary, the legislature, and others will benefit from the new Federal Rules of Evidence.

 

i. The Judiciary Will Benefit

The judiciary will benefit from new Federal Rules of Evidence for the trier of law. In particular, the judicial policy of stare decisis and the unwritten concept of judicial independence will directly benefit from Congress' enactment of the rules of the STA Method into the Federal Rules of Evidence.

The terms of the Constitution, as the supreme laws of the land,299 must be adhered to by the Supreme Court and others. Congress has the power to make all laws300 and those laws must be adhered to by the Supreme Court and others when consistent with the supreme law of the land. Being third behind the terms of the Constitution and Congress' laws, Supreme Court decisions are the supreme legal precedents of the land and must be adhered to by all where consistent with the supreme law of the land and Congress' laws.

Stare decisis is the judicial policy of adhering to legal precedents to protect settled expectations, thereby contributing to the security and certainty of our system of Government by Constitution.301 Leading the fidelity to the principle of stare decisis is the Supreme Court, which, in the words of Justice Souter, is composed of "nine judges diverse in much but alike in exalting constitutional government."302 Probably the best example of the Court exalting our system of government by Constitution is the majority, concurring, and two dissenting opinions in the flag burning case of Texas v. Johnson.303 Justice Kennedy's concurring opinion in this case summarized it best: America's beliefs in law and peace and in that freedom which sustains the human spirit forces recognition of the poignant but fundamental cost that the flag protects those who hold it in contempt.304

At present, the Federal Rules of Evidence clarify the judicial branch's application of litigant factual evidence to the terms of the law so that litigant expectations implemented by the Court through proper legal analysis, are adhered to by all. The enactment of the rules of the STA Method into the Federal Rules of Evidence will clarify the process by dealing exclusively with legislative factual evidence. Thus, through the rules of the STA Method as the rule of law, lines of cases will be built upon a foundation of implementing the body Congress' meaning of a statutory term rather than built upon a foundation of usurping the body Congress' power to make all laws. This, in turn, will wane the public's perception that the Court is "little more than a [political] power center declaring winners and losers, much like Congress."305 In this way, the STA Method not only supports the judiciary's policy of stare decisis, but strengthens it as well.

The independence of the judiciary will also benefit from the enacted rules of the STA Method. Truly, judicial independence is a living, unwritten concept that must be redefined by each generation in light of the changing needs of society to retain that independence. As our world becomes more complex, Congress must respond by strengthening judicial independence against the internal and external political forces that seek to influence the judiciary. As recent as 1992, the former Solicitor General of the United States Kenneth Starr observed:

[T]he Supreme Court is increasingly signaling its inability to maintain uniformity in the federal system . . . . [S]ix members of the Court have essentially concluded that uniformity of federal law is now an impossible goal. [In short, under present laws, t]he Supreme Court . . . will likely not serve in our third century as the unifying force to maintain the consistency and coherence of federal law.306

Starr correctly concluded that the federal courts of the next century will be courts of statutory term analysis, "as opposed to courts weaving the body of the common law."307 Responding to the need for uniformity of federal law, Chief Justice Rehnquist has identified now as the time for Congress to change the judiciary to meet future challenges while retaining judicial independence:

[A]n independent judiciary . . . is one of the crown jewels of our system of government today. Change is the law of life, and the judiciary will have to change to meet the challenges which will face it in the future. But the independence of the federal judiciary is essential to its proper functioning and must be retained.308

In England, the House of Lords has already promoted the use of legislative or "Parliamentary" history to determine the meaning of the term in Parliament's legislation as a way of protecting the independence of judges in England.309

In The Federalist No. 78, Alexander Hamilton deemed as indispensable to judicial independence strict rules that define and point out the duty of the court in every particular case that comes before that court.310 To this end, Hamilton envisioned judicial independence existing within a stronghold of Congress' laws.311 By clarifying the judicial branch's application of litigant factual evidence to the terms of the law, the Federal Rules of Evidence presently act as the judiciary's bulwark to protect the independence of the judiciary in their application of the litigant facts to the law. By clarifying the judicial branch's application of legislative factual evidence to the terms of the law, the written rules of the STA Method, through the Federal Rules of Evidence, will act to complete the judiciary's bulwark that protects the independence of the judiciary from external political forces and internal, political biases of human nature. In other words, by enacting these rules into law, Congress will shield the judiciary from "the passions and prejudices" of Congress and others, who will all be bound by these same laws, and free the judiciary to "operate in an atmosphere of detached reason to preserve the values of our founding era as well as the statutory protections springing from the Constitution."312 Through this reinvigorated independence, the Supreme Court will be able to maintain uniformity in the federal system through the next century and beyond.

 

ii. The Legislature Will Benefit

The legislature will also benefit by enacting the rules of the STA Method into the Federal Rules of Evidence. Using these rules, a member of Congress may politically track a particular issue by keeping a running, legal analysis of the meaning of a term within that bill. If the running analysis reveals that the matter or scope of a term's meaning will not cover the particular legal issue in the way that member politically desires, that member may use parliamentary tactics in an attempt to alter the meaning of that term to meet that member's goals prior to the date the bill is enacted.

Those members who are more skilled at being legislators and who form coalitions will be more successful at insuring a particular meaning of a term. Thus, as our Republican form of government dictates, those members who have more power in Congress will be more successful at insuring a particular meaning of a term in a statute. This pays regard to the winner and loser, adiaphorous nature of the legislative process. There will be political winners. There will be political losers. The dividing point between the winners and the losers is the political majority, whose superiority in Congress needs only to be outweighing under our government by Constitution. This political outweighing is given effect in the courts under the STA Method rule that states that an analysis of the intrinsic evidence alone need only reasonably determine the body Congress' meaning of a term for a court to conclude that the intrinsic evidence is necessarily clear in its support of one legislative proposition over another. Thus, by informing members of Congress specifically how their legislative actions will affect subsequent judicial analysis, the STA Method better allows each member of Congress their constitutional authority and responsibility to decide the legal meaning of a term that member wants to envelop into Congress' meaning of a statutory term.

 

iii. Others Will Benefit

Limiting the scope of intrinsic evidence to the Congressional Record pays regard to the implications of our dual system of government. In just about all existing cases, a federal court's "interpretation" of a law creates federal law where there in fact is none. Rather than continue to be subject to a federal court's "interpretation" of laws, the several states may enact laws in areas outside the matter or the scope of a term as embodied in Congress' meaning of that term enacted under one of Congress' enumerated powers. Picking federal judges in a nonpartisan manner will once again become a reality313 since the rules of the STA Method permit judges to return to the role of judging rather than acting as our "platonic moral guardians."314

By emphasizing the constitutional authority and responsibility of each individual member of Congress, the Rules of the STA Method stiffen the pressure on each legislator, "to discharge their responsibility with care, understanding, and imagination."315 Upon Congress enacting and passing the rules of the STA Method into law, this stiffened pressure on federal legisators will permit the people and the several states to demand written evidence from the federal courts showing that statutory draftsmen follow the Federal Rules of Evidence upon Congress erecting and passing such rules of statutory term analysis into law.316

By encouraging parliamentary tactics that are not subject to judicial activism, the STA Method gives wide political latitude to the authority and responsibility of each member of Congress to decide the meaning of a statutory term that member wants to envelop into the body Congress. By encouraging structured rules under Article I, Section 5, Clause 2 which are not subject to judicial activism, the STA Method gives wide political latitude to the tied authority and responsibility of each political coalition within Congress to decide the meaning of a statutory term that group wants to envelop into the body Congress. It is in this way that the STA Method accounts for the checks and balances among the individual members of Congress and political coalitions within Congress that coalesce and collapse over the passage of time without jeopardizing the independence of the judiciary. This will lead towards efficacious draftsmanship and assiduous legislation and lead away from letting a politically unaccountable branch take the inevitable political heat.317 This, in turn, will reduce the number of litigated cases by giving the American voter better representation and better laws by which to plan their conduct, thereby freezing up litigation-earmarked, taxpayer money for important basic human or societal programs. The overall effect of enacting the rules of the STA Method into the Federal Rules of Evidence will be to help "secure the blessings of Liberty to ourselves and our Posterity."318

There is no doubt that "Congress has full authority to prescribe procedural as well as substantive rules for the federal courts."319 Enacting the rules of the STA Method into the Federal Rules of Evidence is consistent with the protections afforded to the judicial branch and the authority afforded to the legislative branch by the Constitution. Congress' action of adding the rules of the STA Method to the Federal Rules of Evidence will not reduce the Article III, Section 1 compensation of sitting federal judges, and will not "control or interfere with the adjudication of specific cases or prevent the courts from addressing the constitutionality of the laws they are enforcing."320

While judicial behavior may be ruled by law under Article III, Section 1, judicial behavior cannot be self-controlled through law. Thus, it is true that "the irresponsible judge will twist any approach to yield the outcomes that he [or she] desires and the stupid judge will do the same thing unconsciously."321 However, the STA Method is distinguished from all other approaches in that the structured rules of STA Method prevent the judiciary from creating the appearance that twisted judicial outcomes are constrained.

A member of Congress pre-determines whether a piece of information is a "reliable form" of evidence based on whether that piece of information is applicably set out in the Article I, Section 5, Clause 3 "Journal of its Proceedings." If the information is not applicably set out in the Congressional Record, it is deemed extrinsic evidence under the rules of STA Method and "plays no legitimate role in the legislative process."322 If the information is applicably set out in the Congressional Record, then it is deemed intrinsic evidence under the rules of STA Method and thus is "accompanied . . . by clear indicia of its legitimate role in the legislative process."323 Since the judiciary must take friendship with all the relevant and timely intrinsic evidence applicably set out in the Congressional Record, the judiciary may operate independent of the political gamesmanship of Congress. Moreover, a member of Congress pre-endows the weight (or "weightlessness") of each Congressional Record entry by classifying it as floor discussion, bill, or report evidence and by the entry's proximity to the date the bill is enacted into law. Since it is Congress who gives meaning to the terms of a statute by, among other things, pre-selecting and pre-endowing each Congressional Record entry, the judiciary can not "manipulate the [analytical] process by carefully selecting and endowing with undue weight some statement uttered in the course of the lawmaking process."324 Thus, it is the structural haecceity of the STA Method that causes twisted judicial outcomes to stand out as a beacon that signals to Congress to gear up Congress' Article I persuasive powers over mumpsimic judicial activists.

The reliance of the STA Method on the Article I, Section 5, Clause 3 Congressional Record, the Article I, Section 5, Clause 2 legislative rules concerning the Congressional Record, and the interrelation between these laws from the Constitution will restrict exclusive control over the production and application of the intrinsic evidence to the elected members of the body Congress. Since the rules of the STA Method compel judges to use all the relevant and timely intrinsic and extrinsic evidence, the necessity "to announce a new proposition of law in order to decide an actual case or controversy between adversary litigants"325 will be limited exclusively to those circumstances where Congress has expressly delegated its responsibility to promulgate rules to the courts. The STA Method's rules of evidence concerning the relevancy, timing, weight and order of analysis of the intrinsic and extrinsic evidence will ensure that Congress' statutory meaning will be flushed out by the judiciary. From the convoluted, and sometimes glossolalial legislative factual evidence that makes up the Congressional Record rather than being supplanting out by judicial zeitgeists under the guise that Congress has not addressed the specific issue or has done so ambiguously, or that Congress's statute is unclear, imprecise, dysnomic, gap-ridden, hazy, deficient, diffuse, uninformative, defective, or unknowable.

There is no escaping that Congress must enact the explicit rules of the STA Method into the Federal Rules of Evidence to shield Congress' Article I, Section 8, Clause 18 power and to safeguard against federal judges crosscutting judicial legislation under the guise of judicial adjudication. So long as the supremacy of law is usurped through naked judicial power, the blessings of liberty cannot long survive.326 It is for these reasons that I recommend to Congress that it enact the rules of the STA Method into the Federal Rules of Evidence as authorized by the Constitution under Article I, Section 8, Clause 18.327 Thus, whether ours shall truly be a government of laws and not of men and women is now for the American people, through the elected members of Congress, to decide.328

 

3. Non-Legislative Contributions

The third prong in recapturing Congress' power to make all laws involves the non-legislative contributions of Congress, law students, attorneys, and the courts. Each of these groups may apply the STA Method even without Congress enacting the rules of the STA Method into law. The persuasiveness of the STA Method resides in the application of the STA Method to real legislative facts, irrespective of any laudatory or condemning words in the abstract the method itself might receive. As the 19th-century, American orator and reformer Wendell Phillips so eloquently explained back in 1894, "[T]he best use of good laws is to teach others to trample bad laws under their feet."329

 

a. Impeachment

The non-legislative tool of impeachment may help recapture Congress' power to make all laws. Impeachment is an executive power exclusively vested in the House of Representatives.330 The power to try all impeachments is a judicial power exclusively vested in the Senate.331 Where the basis for impeachment is also the basis for a crime, any trial regarding the impeachment proceedings need not be by jury.332 Moreover, the President partially is excluded from the impeachment process.333 In The Federalist No. 81, Alexander Hamilton stated that the legislature's power of impeachment was placed in the Constitution as one means of the legislature to check and balance the judiciary's usurpation on the legislature's power to make all laws.334

Some assert that the House of Representatives may only impeach judicial officers of the United States for Treason, Bribery, or other high Crimes and Misdemeanors as set out for civil officers under Article II, Section 4.335 To these people, concepts like duty, honor, love of country, and oath are mere fodder with which to entertain their exurban, living constitutionalist friends in academia. Fortunately, the people of the United States consider the delegation of the duty to judge the people a serious matter.

Irrespective of any constitutional "law" made by the Court or statutory law made by Congress, the Law of the Constitution constrains the behavior of particular civil officers (as opposed to military officers or elected officials, each distinguished under Amendment XIV)336 beyond just prohibiting high crimes and misdemeanors for all civil officers. For example, unlike other civil officers covered by Article II, Section 4, the Constitution further delineates the behavior of judicial officers in that judicial officers may only hold their offices during good behavior.337 The Constitution bounds the behavior of judicial officers by oath or affirmation under Article VI, Clause 3 to support the terms of the Constitution. Under Article VI, Clause 2, this support includes the terms of the laws of the United States that Congress makes in pursuance to Congress' Article I, Section 8, Clause 18 legislative power to make all laws.338 Moreover, Article VI, Clause 2 textually singles out judges among all others as being bound by Congress' laws by stating that "[t]his Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby."339

In the context of the trier of law, judicial activism is where a judge implements that judge's own meaning of a term in a statute. Where a judge implements that judge's own meaning of a term in a statute, that judge has usurped Congress' Clause 18 legislative power to make all laws. By usurping Congress' power to make all laws, that judge's behavior in particular violates: (i) that judge's oath under Article III, Section I for failure to support the laws of the United States;340 (ii) Article I, Section 8, Clause 18 Congress' power to make all laws;341 and (iii) the statute enacted pursuant to Article I, Section 8, Clause 18.342 It is the judge's behavior of violating that judge's oath to support the laws of the United States that falls short of good behavior. Even when not falling to the level of a misdemeanor under Article II, Section 4, this falling short of good behavior under Article III, Section 1, in turn, allows the Government to prevent that judge from holding their office under Article III, Section 1.343 Although there might be simpler mechanisms to prevent that judge from holding their office, the Constitution is clear that Congress may prevent that judge from holding their office by disqualifying that judge from holding office after conviction of impeachment under Article I, Section 3, Clause 7. Appointment to the bench guarantees independence, not immunity.

To elaborate, establishing that the behavior of a trier of law is not maintained above the particular level of good behavior under Article III, Section 1 for the purpose of impeachment, is a three step process. Since the meaning of the term "good behavior" under Article III, Section 1 is unique for each circumstance, the meaning of the term "good behavior" under Article III, Section 1 first needs to be established for each circumstance. In the case of the trier of law, implementing Congress' Article I, Section 8, Clause 18 meaning of a term in a statute is good behavior. Thus, Congress' meaning of the particular statutory term at issue before the court needs to be established to a level of assuredness before proving trier of law judicial activist behavior. By applying the STA Method, Congress' meaning of a term in a statute can be established to a high level of assuredness.

By establishing Congress' meaning of the statutory term at issue before the court, the meaning of the term "good behavior" under Article III, Section 1 is established. For the second step, the judge's behavior needs to be established. Here, the judge's behavior will be tangibly embodied in the text of that judge's issued opinion regarding that same statutory term.

The third and final step is to compare the now established good behavior under Article III, Section 1 to the judge's behavior set out in the court's written opinion to determine whether the behavior of that trier of law was maintained above the established level of Article III, Section 1 good behavior. If that trier of law failed to implement Congress' meaning of the statutory term at issue before that court, that judge's behavior falls below the established level of good behavior for the particular circumstances. Establishing these three steps will provide the legal analysis necessary to supply the grounds for the essentially political process of impeachment and trial of impeachment.

For example, in part three of my article Patent Compensation,344 I applied the STA Method to the terms of 35 U.S.C. § 284 to establish Congress' meaning of the statutory term "general damages." This analysis of the intrinsic evidence of the Congressional Record reasonably established the term "good behavior" under Article III, Section 1 for those particular circumstances. Implementing the matter and scope of Congress' term "general damages" under 35 U.S.C. § 284 is good behavior for a judge or Justice under Article III, Section 1 of the Constitution. In part four of that same law review article, I first established the behavior of four Supreme Court Justices regarding Congress' statutory term "general damages" as set out in the Aro Manufacturing v. Convertible Top Replacement Co.345 opinion. I then showed in particular detail how the behavior of each of these Justices was not maintained above good behavior under Article III, Section 1 since they implemented their own scope for Congress' term "general damages" rather than Congress' scope for that same statutory term. Consistent with my oath to support the Constitution and that document's mandate that Congress shall have the power to make all laws, my law review article Patent Compensation supplied the legal analysis that would be necessary to support a decision by the House of Representatives to impeach the author of that plurality opinion as well as the signatories of that plurality opinion. My analysis in Patent Compensation restricted the punitive effects of this analysis to the abstract since these Justices left the bench long ago. Others, including myself, need only follow the rules of the STA Method to supply the House of Representatives with the legal analysis necessary to support impeachment of a sitting judge or justice should the House of Representatives so direct.

Under Article III, Section 2, Clause 2, impeachment of a judicial officer is an exception to the Supreme Court's general authority under our Constitution "to say what the law is." Rather than vesting the power of impeachment in the Supreme Court, the Constitution exclusively vests the executive power to impeach and the judicial power to try all impeachments in one Congress.346 Thus, it is emphatically the province and duty of Congress to say what the law is concerning the impeachment of a judge or justice. This organic law of the Constitution makes sense. For example, allowing the judicial branch to ultimately define the culpable behaviors sufficient for the Senate to disqualify a member of the judiciary from holding their office, lacks the checks and balances innately inherent in our Constitution. The living constitutionalist's argument that the particular law of Article III, Section 1's good behavior is redundant because it's encompassed within the general law of Article II, Section 4's high crimes and misdemeanor sidesteps the Constitution's primary organic law: it is the Constitution under Article VI, Clause 2, not the Court, that is supreme.347 To clarify that grounds for impeachment of a federal judge include behavior of a judge that falls below the established level of good behavior under Article III, Section 1 for the particular circumstances, I recommend that Congress amend 28 U.S.C. § 372(c)(7)(B)(i) to read "which might constitute one or more grounds for impeachment under the Constitution" by incorporating part of the existing statutory law under 28 U.S.C. § 372(c)(7)(B)(ii).348

To date, however, substantially all impeachments and overtures of impeachments in this area have been partisan since these calls for impeachment have been issue driven rather than driven by violation of a judge's oath. As then Circuit Judge Ginsburg noted in 1983, only nine of fifty-five judges-or sixteen percent-formally charged with an impeachable offense were impeached.349 The reason that calls for impeachment have been issue driven is that the previously available, legitimate analytical methods to determine whether a judge had implemented that judge's own meaning of a term in a statute (i.e., originalism and textualism) were not sufficiently refined to allow the House of Representatives to meet the minimum level of certainty necessary for impeachment of a judge or justice. Due to the lack of refinement in originalism and textualism, there has been no tribunal to which a trier of law has been amenable, no punishment to which a trier of law could be subjected without involving a national crisis.

In The Federalist No. 78, Alexander Hamilton sought to give broad discretion to the trier of fact to ensure that "the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of [unjust and partial] laws" that are not in violation of the Constitution.350 As part of this same line of thought, Hamilton sought to prevent in the trier of law area "judiciary encroachments on the legislative authority" by vesting the power of instituting and determining impeachments in the elected legislative body.351 In this way, triers of fact and voters of legislators work from opposite ends to compel the legislative body to applicably qualify the endeavors of Congress in the Congressional Record. In this same way, makers of laws and voters of legislators both directly and indirectly, work to compel the trier of law to implement Congress' law as originally enacted into law.

Given the broad discretion judges have in applying litigant facts to law, it is unlikely that trier of fact judicial activism can ever be established to a sufficient level of assuredness under any analytical method. In the trier of law area, however, the rules of the STA Method provide "a neutral vantage point outside the [judicial] system"352 that allows the House of Representatives to meet the minimum level of certainty necessary for impeachment of a judge or Justice, declare that a particular judge has usurped Congress' power to make all laws, and form a bipartisan, united resentment against that individual judge for violating that judge's oath of office. In this way, the rules of the STA method serve as an eraser for the lines drawn between the fighting political factions in Congress to enable a united front that will combat the Judicial Activist Movement.

The use of impeachment against the indocile judicial activist should be tempered with wisdom, however. There is little disagreement that impeachment is "so heavy a piece of artillery" as to be fit for extraordinary use only.353 The after effects on that individual judge can be devastating. For example, although not impeached, Rose Elizabeth Bird, the former Chief Justice of the California Supreme Court, was subsequently reduced to "doing clerical work for lawyers who did not recognize her" after a fuming, California electorate ousted her from the bench in 1986 by a 2-1 margin for reversing death sentences and rulings against corporations.354 Portrayed by some as a struggling recluse, a tragic figure, politically untouchable, burnt, scarred, and depressed, Bird "got so caught up in the O.J. Simpson trial that she called members of the defense team to comment on their strategy."355 Mrs. Bird herself, who had never served a day as a judge prior to being appointed to the chief justice position by Governor Jerry Brown in 1977, describes this as going "'From Chief Justice to Bag Lady.'"356

Moreover, as of this writing, Congress has never made rules that would check the judicial temptation of short-term political gain per the people's directive to Congress. Since the judiciary's inability to confine itself to its assigned responsibilities is the direct result of Congress' failure to make rules that would check the judicial temptation of short-term political gain, legislative self-control in exercising the Houses' impeachment power would be wise at this time. After enacting of the rules of the STA Method into the Federal Rules of Evidence, the new clarity of the judicial decisionmaking process will allow the legislature to monitor the responses by the individual members of the judiciary and proceed accordingly.357

 

b. Law Students, Attorneys, & the Courts

Law students, attorneys, and the lower courts can help in their own way to wrest Congress' power from the hands of the aggrandized judiciary. Law students and attorneys can write law review articles that apply the STA Method to existing Supreme Court opinions that turned on analyzing for the legislatures meaning of a statutory term-which is to say most of the Supreme Court opinions. A countless number of these opinions in all areas of law are listed in Sutherland Statutes and Statutory Construction.358 Patent attorneys and patent law boutique firms need not wait to use their knowledge of patent claim construction to apply the STA Method as a means of expanding their business into state and federal appellate practice where the non-patent law appellate case turns on analyzing for the legislatures meaning of a statutory term-which is to say most appellate cases, including those at the Supreme Court level. The federal circuit need not wait to apply the STA Method to statutes within its jurisdiction (perhaps the solutions to the rules concerning the legislature's meaning of a term under § 112, paragraph 6 equivalence thereof, (ejusdem generis),359 and the Doctrine of Equivalents will be there). Moreover, members of all circuits need not wait to write law review articles that apply the STA Method to statutes outside their jurisdiction. As Kenneth Starr observes, "judges should increasingly be seen as contributors to the scholarly community of law."360 In addition, members of Congress certainly are not prohibited from writing law review articles, as the many scholarly legal writings of Senator Orrin Hatch cited in this article demonstrate.361 Last, as the pivotal, conglomerate organization in combating judicial activism, law students, attorneys, judges, and members of Congress as well as the public can provide support to the Judicial Selection Monitoring Project of the Free Congress Foundation's Center for Law & Democracy.362

 

c. The Role of the Judiciary in Updating Statutory Law

One of the original 1974 duties of the Office of the Law Revision Counsel of the House of Representatives (OLRC) was to complete the positive recodification of the laws of the United States.363 However, the duties of the OLRC were reduced in 1995 after the OLRC changed the words "this Act" in the Indian Gaming Regulatory Act to "this chapter" without a notation to the reader of the change.364 Thus, for the Fiscal Year Ending Sept. 30, 1998, appropriations for salaries and expenses of the Office of the Law Revision Counsel of the House were $1,821,000.365

There is nothing to prevent a federal judge or other lawyers from applying the STA Method to a statutory term in question, rewriting the statute, publishing the rewritten statute in an appropriate forum, and sending a copy of the opinion or brief to Congress' Office of the Law Revision Counsel, requesting that they route the recodification request to the appropriate committee in Congress. It is incomprehensible why federal judges do not routinely do this or why Congress does not request or require it as a system to alert Congress to necessary recodifications. Who better to suggest explicit recodification than a federal judge directly involved in that statute? To this end, my last recommendation is for Congress to promote the OLRC as a clearinghouse to receive recodification suggestions from the courts and others with special interest in legislation and route these suggestions to the appropriate House committee.366

 

IV. RECOMMENDATIONS

Listed below is a compilation of ten recommendations for Congress to act upon:

1. A solution to the problem of inconsistent statutory language that is addressed by the manifestation rule is to form a branch within the United States Patent and Trademark Office composed of primary examiners tasked with evaluating the language of proposed bills for text errors such as lack of antecedent basis as set out in 35 U.S.C. 112, second paragraph.367

2. To help litigants and the trier of law to locate all of the timely and relevant intrinsic evidence concerning an enacted bill, I recommend that Congress publish a list of Congressional Record page citations that correspond to the intrinsic evidence of an enacted bill as defined by the rules of the STA Method.368

3. As Congress' part in complying with the due process rights retained by the People, I recommend that Congress make the Congressional Record, from its 1789 inception to present, available on the Internet in a keyword searchable format.369

4. Since there are seven articles and twenty seven amendments to the United States Constitution, I recommend that Congress compile the intrinsic evidence relating to the seven articles and twenty-seven amendments of the Federal Constitution into thirty-four volumes as published on the Internet for use by the Judicial Branch and others.370

5. I recommend that Congress ask all judicial nominees a form of the following: (i) "In the Constitution, Article I, Section 8, Clause 18 specifies that the Congress shall have the power to make all laws. What do the Constitution's terms "make," "all," and "laws" mean to you?"; (ii) "Explain the process that you, as a nominee to the federal bench, use to conclude that Congress has temporarily delegated its Article I, Section 8, Clause 18 responsibility to promulgate rules to the court and how does 28 U.S.C. § 2072 and 'the limitation of a prescribed standard' as required by United States v. Chicago, Milwaukee St. Paul & Pac. R.R.,371 fit into your process?"372

6. As a temporary solution to trier of law judicial activism, Congress should divide the Ninth Circuit along with expanding the jurisdiction of the Court of Appeals for the Federal Circuit, where the Federal Circuit will operate as an additional appellate tier to have exclusive jurisdiction of an appeal from a judgment in an action (civil, criminal, or otherwise) for matters in which the meaning of a federal statutory term was decided.373

7. To call to mind the main thesis of Article I, Section 8, Clause 18 and to make it clearer that it is Congress who has the power to make all laws, I recommend that Congress ensure that all printed documents within its control refer to Article I, Section 8, Clause 18 as the Power to Make All Laws clause rather than the Necessary and Proper clause.374

8. I recommend to Congress that it enact the rules of the STA Method into the Federal Rules of Evidence as authorized by the Constitution under Article I, Section 8, Clause 18.375

9. To make it clearer that grounds for impeachment of a federal judge includes behavior of a judge that falls below the established level of good behavior under Article III, Section 1 for the particular circumstances, I recommend that Congress amend 28 U.S.C. § 372(c)(7)(B)(i) to read "which might constitute one or more grounds for impeachment under the Constitution" by incorporating part of the existing law under 28 U.S.C. § 372(c)(7)(B)(ii).376

10. I recommend that Congress promote the OLRC as a clearinghouse to receive recodification suggestions from the courts and others with special interest in legislation and route these suggestions to the appropriate House committee.377


* Adjunct Professor of Law, University of West Los Angeles School of Law. Licensed in California and Hawaii, Professor Tassinari received the B.S.M.E. degree from Purdue University in May 1986, the J.D. degree in Dec. 1995 and the LL.M. (Tax) degree in May 1996, both from Golden Gate University School of Law, and the LL.M. (Intellectual Property) degree from John Marshall Law School in Dec. 1997. Professor Tassinari practices as a patent attorney at the law firm of Blakely, Sokoloff, Taylor & Zafman (www.BSTZ.com) in Los Angeles, California. Professor Tassinari may be reached at Vtassinari@GGU.Edu or VinceTassinari@BSTZ.Com.

Key words for electronic search: administrative interpretation; Article I, Section 8, Clause 18;Art. I, Sec. 8, Cl.18; congress; Congressional Record; constitutional interpretation; federal common law; federalist; impeachment; intent; judge made law; judicial activism; judicial activist; judicial activist movement; judicial restraint; Kozinski; legislative history; linguistics; Orrin Hatch; patent claim construction; plain meaning; Posner; power to make all laws; Rehnquist; rule of law; Scalia; self-restraint; Senator Hatch; separation of powers; Starr; statutory construction; statutory interpretation; U.S. Const. art. I, § 8, cl. 18.

1. William H. Rehnquist, The Changing Role of the Supreme Court, 14 Fla. St. U. L. Rev. 1, 11 (1986).

2. U.S. Const. art. I, § 8, cl. 18 (stating "[t]he Congress shall have Power . . . [t]o make all Laws . . . .").

3. U.S. Const. art. III, § 1 ("The Judges, both of the Supreme and inferior Courts, shall hold their Office during good Behaviour . . . .").

4. § 284 Damages

Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.

When the damages are not found by a jury, the court shall assess them. In either event, the court may increase the damages up to three times the amount found or assessed.

The court may receive expert testimony as an aid to the determination of damages or of what royalty would be reasonable under the circumstatnces.35 U.S.C. § 284 (1994).

5. Vincent P. Tassinari, Patent Compensation Under 35 U.S.C. § 284, 5 J. Intell. Prop. L. 59 (U. Ga.1997).

6. Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 530 (1947).

7. Richard A. Posner, Statutory Interpretation-in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800, 800 (1983) (footnotes omitted).

8. Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864-65 (1988).

9. Vincent P. Tassinari, Amicus Curiae Brief on Petition to the Supreme Court of the United States, United States v. Brockamp, 517 U.S. 1232 (1996) (No. 95-1225).

10. See Tassinari, supra note 5, at 116-19.

11. 377 U.S. 476 (1964) [hereinafter "Aro II"].

12. See Tassinari, supra note 5, at 119-39.

13. See id. at 139-53.

14. See U.S. Const. art. III, § 2, cl. 1.

15. See U.S. Const. art. I, § 5, cl. 3 ("Each House Shall keep a Journal of it's Proceedings . . ."); U.S. Const. art I, § 8, cl.18 ("The Congress shall have the Power to . . . make all Laws . . ." such as the Federal Rules of Evidence.).

16. See, e.g., Markman v. Westview Instruments, Inc., 517 U.S. 370, 38 U.S.P.Q. 2d 1461 (1996) (holding that questions of patent claim construction are questions of law for the judge, not questions of fact for the jury, even though the ultimate issue is of mixed fact and law).

17. See Propper v. Clark, 337 U.S. 472, 486-87 (1949) (adopting the construction of a state statute as adopted by the Court of Appeals for the Second Circuit). See generally Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511. In particular to federal agency regulations, administrative regulations are merely presumptions of Congress' law that may be challenged and, where appropriate, rebutted.

18. U.S. Const. art. III, § 1. See supra note 3 and accompanying text.

19. The two writings that were central to developing the rules of the STA Method and CTA Method were: Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576, 39 U.S.P.Q.2d (BNA) 1573 (Fed. Cir. 1996) (Michel, J.) (Circuit Judge Paul R. Michel's writings on The Use of Intrinsic and Extrinsic Evidence in Claim Construction); and Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527 (1947). I strongly recommend reading these two items.

Excluding articles by current Supreme Court members, the writings that provided me with both the background in this persistent area and the poignant issues to overcome were (listed chronologically): Patrick R. Oster & Donald P. Doane, The Power of Our Judges: Are They Going Too Far?, U.S. News & World Rep., Jan. 19, 1976, at 29; Richard A. Posner, Statutory Interpretation - in the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800 (1983); Orrin G. Hatch & James MacGregor Burns, Still Adequate for the Twentieth Century? A Debate, 1987 Utah L. Rev. 871; Kenneth W. Starr, Observations about the Use of Legislative History, 1987 Duke L.J. 371; Abner J. Mikva, A Reply to Judge Starr's Observations, 1987 Duke L.J. 380; Orrin G. Hatch, Legislative History: Tool of Construction or Destruction, 11 Harv. J.L. & Pub. Pol'y 43 (1988); Kenneth W. Starr, Of Forests and Trees: Structuralism in the Interpretation of Statutes, 56 Geo. Wash. L. Rev. 703 (May 1988); Orrin G. Hatch, The Politics of Picking Judges, 6 J.L. & Pol. 35 (1989); Kenneth W. Starr, The Supreme Court, the Constitution, and the Rule of Law, 73 Judicature 159 (1989); Orrin G. Hatch, Modern Marbury Myths, 57 U. Cin. L. Rev. 891 (1989); Edward N. Beiser, Kenneth W. Starr, Gerhard A. Gesell, Perspectives on the Judiciary, 39 Am. U. L. Rev. 475 (1990); Kenneth W. Starr, The Supreme Court and the Future of the Federal Judiciary, 32 Ariz. L. Rev. 211 (1990); Kenneth W. Starr, The Courts of Appeals and the Future of the Federal Judiciary, 1991 Wis. L. Rev. 1; Alex Kozinski, My Pizza with Nino, 12 Cardozo L. Rev. 1583 (1991); Kenneth W. Starr, The Supreme Court and the Federal Judicial System, 42 Case W. Res. L. Rev. 1209 (1992); Orrin G. Hatch, A Dependence on the People, 77 Cornell L. Rev. 959 (1992); Orrin G. Hatch, Making a Real Mess, 1995 Pub. Int. L. Rev. 139; Orrin G. Hatch, Congress and the Courts: Establishing a Constructive Dialogue, 46 Mercer L. Rev. 661 (1995); Orrin G. Hatch, Judicial Activism: Usurping the Constitution and Legislative Powers, 63 Vital Speeches of the Day 354 (Apr. 1, 1997), available in LEXIS, Busfin Library, Abi File; Autumn Fox & Stephen R. McAllister, An Eagle Soaring: The Jurisprudence of Justice Antonin Scalia, 9 Campbell L. Rev. 223 (1997); Adrian Vermeule, Legislative History and the Limits of Judicial Competence, 50 Stan. L. Rev. 1833 (1998).

For articles on this topic by current members of the Court as used in this Article, see Rehnquist, The Future of the Federal Courts, 62 Vital Speeches of the Day 418, (May 1, 1996), available in LEXIS, News Library, Spechs File; Rehnquist, An Independent Judiciary: Bulwark of the Constitution, 9 N. Ill. U. L. Rev. 1 (1988); Rehnquist, The Changing Role of the Supreme Court, 14 Fla. St. U. L. Rev. 1 (1986); Rehnquist, A Plea for Help: Solutions to Serious Problems Currently Experienced by the Federal Judicial System, 28 St. Louis U. L.J. 1 (1984); Stevens, The Shakespeare Canon of Statutory Construction, 140 U. Pa. L. Rev. 1373 (1992); Stevens, A Judge's Use of History, 1989 Wis. L. Rev. 223; Stevens, Judicial Restraint, 22 San Diego L. Rev. 437 (1985); Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177 (1982); O'Connor, The Changing Role of the Circuit Justice, 17 U. Tol. L. Rev. 521 (1986); Antonin Scalia, A Matter of Interpretation (1997); Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581 (1990); Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511; Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989); Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989); Kennedy, Judicial Ethics and the Rule of Law, 40 St. Louis U. L.J. 1067 (1996); Souter, A Tribute to Justice Harry A. Blackmun, 104 Yale L.J. 5 (1994); Thomas, Transition from Policymaker to Judge - A Matter of Deference, 26 Creighton L. Rev. 241 (1993); Thomas, Toward a "Plain Reading" of the Constitution-The Declaration of Independence in Constitutional Interpretation, 1987 How. L.J. 691; Ginsburg, A Plea for Legislative Review, 60 S. Cal. L. Rev. 995 (1987); Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges, 55 U. Colo. L. Rev. 1 (1983); Ginsburg, Inviting Judicial Activism: A "Liberal" or "Conservative" Technique, 15 Ga. L. Rev. 539 (1981); Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845 (1992); Breyer, The Legislative Veto After Chada, 72 Geo. L.J. 785 (1984).

20. See Tassinari, supra note 5, at 75-76.

21. See Autogiro Co. of Am. v. United States, 384 F.2d 391, 397 (Ct. Cl. 1967) ("In deriving the [inventor's] meaning of a [term in a] claim, we inspect all useful documents.").

22. See Vitronics, 90 F.3d at 1582.

23. Id. See also Markman v. Westview Instruments, Inc., 52 F.3d 967, 979 (Fed. Cir. 1995) (in banc) (stating that "[c]laims must be read in view of the specification, of which they are a part"), aff'd, 517 U.S. 370 (1996).

24. See Cybor Corp. v. FAS Technologies, Inc., 138 F.3d 1448, 1462-63 (Fed. Cir. 1998) (in banc) (Plager, J., concurring) (stating that "the question that counts [is] what do the [terms of the] claims mean?" and the "effort is to understand the meaning of the terms in the claims"). See generally 5 Donald S. Chisum, Chisum on Patents § 18.03 (1990) (approaches to claim language).

25. The Federal Circuit was formed by the Federal Courts Improvement Act of 1982, Pub. L. 97-164, § 302, 96 Stat. 25 (Apr. 2, 1982) (effective Oct. 1, 1982) essentially to bring legitimacy to patent law legal theory and practice. See generally Patricia McDermott, Federal Circuit Home Page (visited Jan. 12, 1998) <http://www.fedcir.gov/>.

26. 641 F. Supp. 675 (D. Colo. 1986).

27. Simmons, 641 F. Supp. at 682.

28. Young v. Community Nutrition Inst., 476 U.S. 974, 988 (1986) (Stevens, J., dissenting) (quoting Frankfurter, supra note 6, at 529).

29. Id.

30. U.S. Const. art. I, § 5, cl. 3.

31. See Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 643-44 (1982) (O'Connor, J., dissenting).

32. United States v. Johnson, 221 U.S. 488, 496 (1911). ("What we have to decide is whether such misleading statements are aimed at and hit by the words of the act . . . . [A]nd although the meaning of a sentence is to be felt rather than to be proved . . . the impression may be strengthened by argument, as we shall try to show.")

33. 363 U.S. 685 (1960).

34. American-Foreign, 363 U.S. at 694 (Harlan, J., dissenting) (quoting Frankfurter, supra note 6, at 533).

35. Theodore M. Bernstein, Miss Thistlebottom's Hobgoblins 39-40 (1971) (using "omiom" as an acronym for "Original Meaning Is the Only Meaning").

36. See, e.g., Molzof v. United States, 502 U.S. 301, 307 (1992) (stating that "[l]egal dictionaries [i.e., extrinsic evidence] in existence when the FTCA was drafted and enacted indicate that . . .").

37. Frankfurter, supra note 6, at 535, quoted in Andrus v. Allard, 444 U.S. 51, 56 (1979) and in Scott v. United States, 436 U.S. 128, 146-47 (1978). Accord United States v. Kahn, 415 U.S. 143, 151 (1974).

38. U.S. Const. art. III, § 2, cl. 1 (stating "[t]he judicial Power shall extend to all

Cases . . . and . . . to Controversies").

39. Posner, supra note 7, at 817.

40. Id. at 812.

41. For three examples of the application of this manifestation rule, see Tassinari, supra note 5, at 90-91, 92-93, 104. A solution to the problem of inconsistent statutory language that is addressed by the manifestation rule is to form a branch within the United States Patent and Trademark Office composed of primary examiners tasked with evaluating the language of proposed bills for text errors such as lack of antecedent basis as set out in 35 U.S.C. 112, second paragraph. For other recommendations, see infra Part IV of this article.

42. See Monroe v. Pape, 365 U.S. 167, 191 n.47 (1961) (stating "[t]his Act has been described as an instance where 'Congress supplies its own dictionary.'") (quoting Frankfurter, supra note 6, at 536); Tassinari, supra note 5, at 91. (The statutory term "general damages" being defined expressly as "due compensation" by the statutory phrase "general damages shall be due compensation."); supra note 4.

43. See Frankfurter, supra note 6, at 528. See also Autogiro Co. of Am. v. United States, 384 F.2d 391, 397, 155 U.S.P.Q. (BNA) 697, 702 (Ct. Cl. 1967) ("Allowing the patentee verbal license only augments the difficulty of understanding the claims. The sanction of new words or hybrids from old ones not only leaves one unsure what a rose is, but also unsure whether a rose is a rose. Thus we find that [the meaning of] a claim [term] cannot be [determined] without going beyond the claim itself. No matter how clear a claim appears to be, lurking in the background are documents that may completely disrupt initial views on its meaning."); A Re-Evaluation of the Use of Legislative History in the Federal Courts, 52 Colum. L. Rev. 125 (1952).

44. Frankfurter, supra note 6, at 528.

45. U.S. Const. art. I, § 8, cl. 18.

46. Abner J. Mikva, A Reply to Judge Starr's Observations, 1987 Duke L.J. 380, 386. Judge Mikva's twenty-plus years of service in Congress as an elected member allowed him to concisely summarize how Congress works, in this short, well reasoned article.

47. U.S. Const. art. I, § 8, cl. 18 (providing "[t]he Congress shall have the Power . . . To make all Laws which shall be necessary and proper for carrying into Execution the . . . Powers . . . vested by this Constitution").

48. U.S. Const. art. I, § 5, cl. 3 (providing that "Each House shall keep a Journal of its Proceedings, and from time to time publish the same . . . .").

49. 462 U.S. 919 (1983).

50. Chadha, 426 U.S. at 951.

51. "Each House may determine the Rules of its proceedings . . . ." U.S. Const. art. I, § 5, cl. 2.

52. See Frankfurter, supra note 6, at 528.

53. U.S. Const. art. III, § 2, cl. 1. (extent of judicial power).

54. Note, Intent, Clear Statements and the Common Law: Statutory Interpretation, 95 Harv. L. Rev. 892, 904 (1982).

55. See Orrin G. Hatch & James MacGregor Burns, Still Adequate for the Twentieth Century? A Debate, 1987 Utah L. Rev. 871, 875. Although the Judiciary may be the referee, the President and Congress run the league subject to the people as the stockholders.

56. U.S. Const. art. VI, cl. 3 (admanuensis).

57. 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the . . . duty of the judicial department to say what the law is").

58. For an example of such a list, see Tassinari, supra note 5, at 85 n.49. For other recommendations, see infra Part IV.

59. Frankfurter, supra note 6, at 543-44.

60. 511 U.S. 531 (1994).

61. BFP, 511 U.S. at 544 (quoting Frankfurter, supra note 6, at 540, quoted in Kelly v. Robinson, 479 U.S. 36, 49-50 n.11 (1986)).

62. Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. Cal. L. Rev. 845, 847 (1992).

63. The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961), quoted in Orrin G. Hatch, A Dependence on the People, 77 Cornell L. Rev. 959, 959-60 (1992).

64. Frankfurter, supra note 6, at 536, quoted in Commissioner v. Groetzinger, 480 U.S. 23, 28 (1987).

65. Evans v. United States, 504 U.S. 255, 260 n.3 (1992) (quoting Frankfurter, supra note 6, at 537, quoted in Moskal v. U.S., 498 U.S. 103, 121 (1990)).

66. 149 U.S. 304 (1893).

67. Nix, 149 U.S. at 306-07. Note that taking judicial notice of a timely dictionary entry makes the judicial notice timely in itself, even though the act of judicial notice will occur after the enactment date of the disputed term. So long as there is a showing that the dictionary entry was in existence prior to the enactment date of the disputed term, the document evidence is timely.

68. United States v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1804).

69. Panama Refining Co. v. Ryan, 293 U.S. 388, 439 (1935) (Cardozo, J., dissenting).

70. Orrin Hatch, Legislative History: Tool of Construction or Destruction, 11 Harv. J.L. Pub. Pol'y 43, 43 (1988).

71. See generally Title 44 of the United States Code (Public Printing and Documents). For a list of federal materials, see Editors of the Colum. Law Rev. et al., The Bluebook: A Uniform System of Citation, Rules 11-14, at 72-101 (16th ed. 1996) (including "Constitutions, Statutes, Legislative, Administrative, and Executive Materials").

72. 39 U.S.C. § 3212(a) (1994).

73. 44 U.S.C. § 906 (1994). "§ 906 Congressional Record: gratuitous copies; delivery. The Public Printer shall furnish Congressional Record only as follows . . . ."

74. 44 U.S.C. § 4101(a)(2) (1994).

75. Library of Congress, American Memory: A Century of Lawmaking for a New Nation (last modified Sept. 1, 1998) <http://memory.loc.gov/ammem/amlaw/lawhome.html>.

76. Library of Congress, THOMAS: Legislative Information with Internet (last visited Aug. 5, 1998) <http://thomas.loc.gov/home/thomas.html>.

77. For other recommendations, see infra Part IV.

78. Wallace v. Christensen, 802 F.2d 1539, 1559 (9th Cir. 1986) (Kozinski, J., concurring).

79. Breyer, supra note 62, at 874 (internal punctuation omitted).

80. Id. at 845-46.

81. Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845).

82. For an example of a complete list of relevant and timely Congressional Record entries regarding a particular term within a statute, see Tassinari, supra note 5, at 85 n.49.

83. Hatch, supra note 70, at 48.

84. U.S. Const. art. I, § 7.

85. 524 U.S. 417 (1998).

86. See Toobin, The Last Word, New Republic, Nov. 13, 1986, at 13 (describing the strong reaction to Mr. Meese's placing remarks in the U.S.C.C.A.N.).

87. See Conroy v. Aniskoff, 507 U.S. 511, 521 n.3 (1993) ("In quoting this floor statement, I follow the convention of legislative history, which is to assume conclusively that statements recorded in the Congressional Record were in fact made. That assumption of course does not accord with reality." (citing 117 Cong. Rec. 36, 506-07 (1971), a floor statement that may not have been actually delivered on the floor of Congress)).

88. See, e.g., Gregg v. Barrett, 771 F.2d 539, 541 (D.C. Cir. 1985) ("Only as an aid in distinguishing the manner of delivery in order to contribute to the historical accuracy of the Record, statements or insertions in the Record where no part of them was spoken will be preceded and followed by a 'bullet' symbol." (quoting Laws and Rules of Publication of the Congressional Record, 130 Cong. Rec. App. (daily ed. Feb. 27, 1984)).

89. See Hatch, supra note 70, at 45.

90. Posner, supra note 7, at 806 ("There is no evidence that members of Congress . . . know the code or that if they know, they pay attention to it.").

91. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process 1415 (tentative ed. 1958) (unpublished manuscript on file in Harvard Law School library).

92. See Hatch, supra note 70, at 48-49.

93. Breyer, supra note 62, at 847.

94. Sen. Orrin Hatch, Address at the Federalist Society's 10th Anniversary Lawyer Convention (Nov. 15, 1996), available in LEXIS, Legis Library, Cngtst File.

95. Compare Brest v. Commissioner of Ins., 169 N.E. 657, 661 (Mass. 1930) (quoting Oliver Wendell Holmes, "The life of the law has not been logic; it has been experience.")

96. See Anthony M. Kennedy, Judicial Ethics and the Rule of Law, 40 St. Louis U. L.J. 1067, 1071 (1996) ("In the federal courts, one custom followed in order to eliminate small disputes is the rule of seniority, by which judges with longer tenure take precedence in discussion and in various other ways, such as in the assignment of the responsibility to write the court's opinions.").

97. See generally Orrin G. Hatch, A Dependence on the People, 77 Cornell L. Rev. 959 (1992).

98. Abner J. Mikva, Reading and Writing Statutes, 48 U. Pitt. L. Rev. 627, 631 (1987).

99. See Hatch, supra note 70, at 45.

100. Frankfurter, supra note 6, at 545.

101. In a legislative pincers movement, two members of Congress cooperate to make a political offer to the remaining members as to the legal scope of the meaning of a particular term in the bill at issue. The second member will ask the first member to explain the meaning of the particular term. The first member will answer, giving a reasonable opportunity to the other members to respond in disagreement or agreement. See W. David Slawson, Legislative History and the Need to Bring Statutory Interpretation Under the Rule of Law, 44 Stan. L. Rev. 383, 397 (1992).

102. In patent law nomenclature, "Prosecution History Estoppel." See generally 5 Donald S. Chisum, Chisum on Patents § 18.05, (Prosecution History Estoppel); Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17 (1997); Hughes Aircraft Co. v. United States, 717 F.2d 1351 (Fed. Cir. 1983).

103. INS v. Chadha, 462 U.S. 919, 952 (1983).

104. Chadha, 462 U.S. at 952.

105. See Patricia M. Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 202 (1983).

106. See id.

107. See Thurston v. United States, 232 U.S. 469, 471 (1914) (supporting the use of dictionaries in the judicial process as extrinsic evidence, stating that "Congress is presumed to know the [ordinary and reasonable] meaning of words and the rules of grammar."); See also Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473, 1478 (Fed. Cir. 1998) (warning that "Courts must exercise caution lest dictionary definitions, usually the least controversial source of extrinsic evidence, be converted into technical terms of art having legal, not linguistic, significance.").

108. Nix v. Hedden, 149 U.S. 304, 306-07 (1893).

109. Posner, supra note 7, at 801.

110. See Breyer, supra note 62, at 858-60, 872-74. ("Consider How Congress Actually Works"); Hatch, supra note 70, at 44. But see United States v. Taylor, 487 U.S. 326, 345 (1988) (pejoratively quoting from 120 Cong. Rec. 41,795 (1974) ("I have an amendment in my hand which could be offered, but if we can make up some legislative history which would do the same thing, I am willing to do it.")).

111. See generally Hatch, supra note 97.

112. Hatch, supra note 70, at 43.

113. 489 U.S. 87 (1989).

114. 488 F.2d 714 (5th Cir. 1974).

115. Blanchard, 489 U.S. at 98-99 (Scalia, J., concurring ).

116. Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990).

117. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85 (1988).

118. Rodriguez v. United States, 480 U.S. 522, 525 (1987) (per curiam) (citations omitted).

119. Cannon v. University of Chicago, 441 U.S. 677, 696-97 (1979).

120. Lorillard v. Pons, 434 U.S. 575, 580 (1978).

121. United States v. Bailey, 34 U.S. (9 Pet.) 238, 255 (1835).

122. Hatch, supra note 70, at 43.

123. Stephen Breyer, The Legislative Veto After Chadha, 72 Geo. L.J. 785, 791 (1983).

124. Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 255 n.2 (1992) (Stevens, J., concurring) (quoting Frankfurter, supra note 6, at 536).

125. See U.S. Const. art. VI, cl. 2.

126. See U.S. Const. art. I, § 8, cl. 18.

127. See e.g., Tassinari, supra note 5, at 111 n.140 & 129-32.

128. H.R. 5037, 90th Cong. (1968).

129. See 113 Cong. Rec. 21,085 (1967).

130. Article I, Section 5, Clause 3 of the Constitution mandates the Congressional Record to be a "Journal of its Proceedings." Congress codified this under 44 U.S.C. § 901 by requiring that the Congressional Record be "substantially a verbatim report of proceedings."

131. The rules of the STA Method as originally published in 1997 unfortunately could be used to focus on Congress' "intention", but sought to solve this "intent" problem by stating that any conclusion by the trier of law as to the body Congress' intent can only have importance as a heuristic technique of determining the body Congress' meaning of a term in a statute. See Tassinari, supra note 5, at 89. In this article, I have removed any reference to Congress' intent from the rules of the STA method since the Judiciary's focus on Congress' intent rather than Congress' action is one technique judicial activists use to bypass Congress' law.

132. Frankfurter, supra note 6, at 530.

133. Posner, supra note 7, at 810.

134. For a list of these materials, see Editors of Columbia Law Review et al., The Bluebook: A Uniform System of Citation, § Tables and Abbreviations, at 164-284 (16th ed. 1996).

135. Scalia, supra note 8, at 856.

136. 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the . . . duty of the judicial department to say what the law is").

137. Alex Kozinski, My Pizza with Nino, 12 Cardozo L. Rev. 1583, 1587 (1991) (paraphrasing a plaque that resides on Justice Scalia's office wall) (internal quotes omitted).

138. See Tassinari, supra note 5.

139. See supra text accompanying note 135.

140. U.S. Const. art. V.

141. U.S. Const. art. I, § 5, cl. 3.

142. U.S. Const. art. V. See also U.S. Const. art. VII.

143. Compare Fed. R. Evid. 901 (authentication requirement) and Fed. R. Evid. 902 (self-authentication of document evidence), with Scalia, supra note 8, at 856 (stating, "[e]ven beyond [considering an enormous mass of material], [the task of applying originalism] requires an evaluation of the reliability of that material-many of the reports of the ratifying debates, for example, are [speculated] to be quite unreliable.").

144. See Scalia, supra note 18, at 857.

145. To date, the best source on the Internet of evidence intrinsic to the terms in the Federal Constitution is William C. Fray and Lisa A. Spar, The Avalon Project at the Yale Law School: Documents in Law, History and Government (visited Oct. 15, 1998) <http://www.yale.edu/lawweb/avalon/avalon.htm>. For other recommendations, see infra Part IV.

146. Denton v. City of Carrollton, 235 F.2d 481, 498 (5th Cir. 1956).

147. United States v. Wade, 388 U.S. 218, 250 (1967) (Black, J., dissenting in part and concurring in part).

148. For recent trends in commentary on judicial activism by members of Congress, see 142 Cong. Rec. S1161 (daily ed. Feb. 9, 1996) (federal judge appointments); 142 Cong. Rec. S2790 (daily ed. Mar. 25, 1996) (judicial selection); 142 Cong. Rec. S3177 (daily ed. Mar. 29, 1996); 143 Cong. Rec. S848 (daily ed. Jan. 30, 1997); 143 Cong. Rec. H1411 (daily ed. Apr. 10, 1997); 143 Cong. Rec. H1412 (daily ed. Apr. 10, 1997); 143 Cong. Rec. H1587 (daily ed. Apr. 16, 1997); 143 Cong. Rec. H1588 (daily ed. Apr. 16, 1997); 143 Cong. Rec. S11938 (daily ed. Nov. 7, 1997) (executive session); 144 Cong. Rec. S640 (daily ed. Feb. 11, 1998); 144 Cong. Rec. H2242 (daily ed. Apr. 23, 1998); 144 Cong. Rec. S6186 (daily ed. June 11, 1998).

149. Bridges v. California, 314 U.S. 252, 289 (1941) (Frankfurter, J., dissenting).

150. Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177, 183 (1982).

151. Tassinari, supra note 5.

152. See, e.g., Cecere v. Ohringer Home Furniture Co., 220 A.2d 350 (Pa. Super. Ct. 1966) (Orrin G. Hatch, counsel for appellant, correctly arguing over the meaning of the statutory term "doing business" since the scope of the term "doing business" was incompletely set out in the text of the pertinent statute).

153. Bailey v. United States, 516 U.S. 137, 145 (1995) (stating that "[t]he meaning of statutory language . . . depends on context.") (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994) (citing King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991)) (quoted in Conroy v. Aniskoff, 507 U.S. 511, 515 (1993))).

154. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the . . . duty of the judicial department to say what the law is").

155. Employment Division v. Smith, 494 U.S. 872, 890 (1990) (Scalia, J.).

156. 508 U.S. 223 (1993).

157. A countless number of these opinions in all areas of law are listed in Norman J. Singer, Sutherland Statutes and Statutory Construction (5th ed. 1997).

158. Neither the Supreme Court opinion nor the published lower court opinions in Smith v. United States specified the date of arrest or indictment. Thus, for the date Smith was arrested, see Joan Biskupic, High Court Rejects Relaxation Of Standard for Guilty Verdict; No Compromise Allowed in 'Beyond Reasonable Doubt' Instruction, Wash. Post, June 2, 1993, at A4. Note that the statute 18 U.S.C. § 924 (1968) (Firearm Penalties) was the product of H.R. 5037, 90th Cong. § 924 (1968) as cited supra note 128 and accompanying text.

159. In patent law nomenclature, whether Mr. Smith infringed Congress' claims in 18 U.S.C. § 924(c)(1) by trading a firearm for drugs. Recalling that law is invention, compare the similarities between the writing requirement for a patent claim under 35 U.S.C. § 112 (1994) (see infra text accompanying note 234) and the text of any law.

160. Colin Campbell, Memory, History and Commonplace, Atlanta L. & Const., Nov. 21, 1996, at C01; William Stryring, Feel-Good Label for Educational Failure, Indianapolis Star, Aug. 8, 1996, at A11.

161. Section 924(d) concerns seizure and forfeiture of property, not § 924(c)'s deprivation of liberty. Moreover, there is no proof set out in the Smith opinion that § 924(d) is timely legislation applicably set out in the Congressional Record concerning § 924(c)(1). Thus, § 924(d) is at most relevant as extrinsic evidence to the meaning of the terms in § 924(c)(1). Concerning § 924(c)(1), not all entries in the Congressional Record are intrinsic to § 924(c)(1). Merely being part of the same statute is not sufficient to be intrinsic evidence. In this case, § 924(d) and § 924(c)(1) have completely different legislative histories. Recall from supra text accompanying notes 121 through 126 that when enacting new legislation, timely legislation, legal cases, and other evidence not applicably set out in the Congressional Record concerning that new legislation is at most relevant as extrinsic evidence.

162. See generally Smith v. United States, 508 U.S. 223 (1993). A good issue for Congress and others to address is the application of the rules of the STA Method to the terms in 18 U.S.C. § 924(c)(1) (Nov. 18, 1988) since the Smith Court substantially ignored Congress' timely and relevant intrinsic evidence.

163. Starr, Observations about the Use of Legislative History, supra note 19, at 376-77.

164. Cf. O'Connor Chides Lawyers for Rudeness, Large Fees, Orlando Sentinel, Mar. 6, 1994, at A20 (Justice Sandra Day O'Connor: "I have watched with great sadness the decline in esteem held by our society of lawyers." "There must be a rediscovery of civility in the profession." "We need a fundamental change in attorney conduct.").

165. Sam J. Ervin, Jr., Preserving the Constitution (1984) (admonitory autobiography of the Senator with two of its chapters entitled "Judicial Verbicide" and "Illustrative Judicial Aberrations").

166. 516 U.S. 137 (1995).

167. See White House Press Office, Text of Presidential Proclamation of National Pearl Harbor Remembrance Day, U.S. Newswire, Dec. 6, 1995, at National Desk, available in LEXIS, News Library, Arcnws File.

168. See Bailey, 516 U.S. at 143 (citing Smith v. United States, 508 U.S. 223 (1993)). Since the defendant in Bailey, Ronald Bailey, was arrested in the same year as John Angus Smith (1989), the behavior of Bailey as well as Smith was governed by 18 U.S.C. § 924(c)(1) enacted on November 18, 1988.

169. See United States v. Worrall, 2 U.S. (2 Dall.) 384, 391 (1798) (no federal criminal common law).

170. See Tassinari, supra note 5, at 119-53.

171. Singer, supra note 157. In the "Federal Legislative Process" course that I teach, each student is assigned a Supreme Court case on which to research the legislative history of the term at issue in that case so as to establish where the Court went wrong.

172. See Ginsburg, Inviting Judicial Activism: A "Liberal" or "Conservative" Technique, supra note 19, at 541-42. For a look at just how unimportant Congress has become in making law, see Nicholas S. Zeppos, The Use of Authority in Statutory Interpretation: An Empirical Analysis, 70 Tex. L. Rev. 1073 (1992) (empirical study, revealing what the Supreme Court actually does in analyzing Congress' statutes).

173. Raoul Berger, Government by Judiciary (1977).

174. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997).

175. Id. at 35-36.

176. Id. at 36-37.

177. The Federalist No. 81, at 545-46 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

178. For a thorough analysis on this area, see Hatch, The Politics of Picking Judges, supra note 19.

179. See Ginsburg, Inviting Judicial Activism: A "Liberal" or "Conservative" Technique, supra note 19, at 553-57.

180. The term "Borked" has as its roots the indignity Judge Robert Bork suffered during the 1987 process of his nomination to the United States Supreme Court. See 139 Cong. Rec. S13,332 (daily ed. Oct. 13, 1993) (stating that "Democrats have been complaining that Dellinger is being Borked-that is, opposed not because he lacks the skills and experience to do the job for which he is nominated, but because Republicans disagree with his views. The Democrats are right."); 133 Cong. Rec. D1389 (daily ed. Oct. 23, 1987) ("Not Confirmed: By 42 yeas to 58 nays (Vote No. 348), Senate failed to confirm the nomination of Robert H. Bork, of the District of Columbia, to be an Associate Justice of the Supreme Court of the United States. [See 133 Cong. Rec. S15,011]"); Stephen Griffin, Politics and the Supreme Court: The Case of the Bork Nomination, 5 J.L. & Pol. 551 (1989) (analyzing the confirmation battle); A Judge Gets Borked, Atlanta Const., Aug. 20, 1987, at A20. ("Let's just hope something enduring results for the justice to be like a new verb, 'Borked.' Dictionaries will say it is synonymous with 'maligned.'"); Robert G. Beckel, Twisting in the Wind: The Blood Sport of Confirmation Hearings, Los Angeles Times, Mar. 23, 1997, at M1; Thomas H. Middleton, Take My Word!: 'Borked Out' as a Verb? You be the Judge, Los Angeles Times, Nov. 20, 1987, § 5A, at 2; Skip Myslenski & Linda Kay, Chic. Trib., Sept. 29, 1987, at C2 (during Judge Bork's nomination hearings, stating that "[w]e got Borked.").

181. Orrin Hatch, Judicial Nominees: The Senate's Steady Progress, Wash. Post, Jan. 11, 1998, at C09; see also Orrin G. Hatch, Opposition to Lee Based on His Left-Leaning Activism, Salt Lake Trib., Nov. 30, 1997, at AA4.

182. A good example of this misdirected thinking is set out in Ginsburg, Inviting Judicial Activism: A "Liberal" or "Conservative" Technique, supra note 19. As then-Circuit Judge Ginsburg wrote, "the Minority Questionnaire employed in 1979 and 1980 by the Republican members of the Senate Committee on the Judiciary expressed concern about '[t]he role of the Federal Judiciary within the Federal Government, and within society generally.'" Id. at 550 (citation omitted). These members of Congress should have been more concerned with the judicial nominee's thoughts about the role of Congress within the Federal Government and within society generally. To this end, I recommend that Congress ask all judicial nominees a form of the following: (i) "In the Constitution, Article I, Section 8, Clause 18 specifies that the Congress shall have the power to make all laws. What do the Constitution's terms "make," "all," and "laws" mean to you?"; (ii) "Explain the process that you, as a nominee to the federal bench, use to conclude that Congress has temporarily delegated its Article I, Section 8, Clause 18 responsibility to promulgate rules to the court, and how does 28 U.S.C. § 2072 and 'the limitation of a prescribed standard' fit into your process as required by United States v. Chicago, Milwaukee, St. Paul & Pac. R. R., 282 U.S. 311, 324 (1931) (quoting Union Bridge v. U.S. 204 U.S. 364, 384-85)(1907))?" For other recommendations, see infra Part IV.

183. The Federalist No. 51, at 322 (James Madison) (Clinton Rossiter ed., 1961), quoted in Hatch, A Dependence on the People, supra note 19, at 956-60.

184. Stevens, Some Thoughts on Judicial Restraint, supra note 19, at 178.

185. See Burger, The Time is Now for the Intercircuit Panel, A.B.A. J. Apr. 1985, at 86, 88, cited in Rehnquist, supra note 1, at 12 n.29.

186. Rehnquist, supra note 1, at 14.

187. See Ginsburg, A Plea for Legislative Review, supra note 19 at 996 n.7, 999-1000 n.30-32, 1002-1011.

188. Scalia, The Rule of Law as a Law of Rules, supra note 19, at 1185.

189. Ginsburg, Inviting Judicial Activism: A "Liberal" or "Conservative" Technique, supra note 19, at 547.

190. See Kennedy, Judicial Ethics and the Rule of Law, supra note 19.

191. See Tassinari, supra note 5, at 153.

192. For other recommendations, see infra Part IV.

193. 127 Cong. Rec. 29,888 (daily ed. Dec. 8, 1981) (remarks of Sen. Alan K. Simpson (R. Wyo.)).

194. 143 Cong. Rec. S10,183 (daily ed. Sept. 29, 1997) (statement of Sen. Hatch). For statistics on the enormity of the Ninth Circuit, see 143 Cong. Rec. S2217 (daily ed. Mar. 12, 1997).

195. 519 U.S. 347 (1997).

196. See Brockamp, 519 U.S. at 354. See also Tassinari, Amicus Curiae Brief on Petition to Supreme Court of the United States, United States v. Brockramp, 517 U.S. 1232 (1996) (No. 95-1225).

197. 523 U.S. 538, 118 S. Ct. 1489 (1998).

198. See Calderon, 118 S. Ct. at 1493.

199. U.S. Const. art. III, § 1.

200. Henry Ward Beecher, Life Thoughts 129 (Fords, Howard, & Hulbert 1858).

201. See Thomas L. Jipping, Face the Facts Miss Reno, Wash. Times, Aug. 7, 1997, at A17 ("No employer in America would fill vacancies in his workforce without regard to the quality or fitness of the job applicants and it would be devastating to treat appointments to the federal bench that way."). Judicial independence is a nebulous term. Perhaps the legal theories behind the agency rules that distinguish an independent contractor from an employee might be a good starting point to define judicial independence. See Restatement (Second) of Agency §220(2) (1958) (providing factors for determining independent contractor status).

202. See 143 Cong. Rec. S8039 (daily ed. July 24, 1997) (In Senate Bill 1022 (1997), the function of the Commission on Structural Alternatives for the Federal Court of Appeals was amended to study the structure and alignment of the Federal Court of Appeals system, with particular reference to the Ninth Circuit) (citing S. 1022, 105th Cong., § 305(a)(2) (1997) (the Commerce, Justice, State, and Judiciary appropriations bill)).

203. Rehnquist, supra note 1, at 12.

204. Ginsburg, A Plea for Legislative Review, supra note 19, at 1005.

205. Stevens, Some Thoughts on Judicial Restraint, supra note 19. ("[T]he justices . . . would be managing the docket of two courts instead of just one." Id. at 179. Even though the Constitution states that the judicial power of the United States shall be vested in one Supreme Court, "I favor the creation of a new court to which the Supreme Court would surrender some of its present power." Id. at 182. Getting around the Constitution's Article III, Section 1 mandate should be no problem since it is the Supreme Court itself who appears to have the power to "say what the law is" in this "getting-around" sense. For example, if five justices vote that control over the Court's docket is not an exercise of "real" judicial power, Article III, Section 1 is circumvented. Id. at 182 ("the proposed court was not expected to exercise any real power")).

206. 28 U.S.C. § 1291 (1994).

207. Rehnquist, supra note 1, at 11.

208. See, e.g., Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 40 (1997) (9-0 Decision) (noting that the Court will rely on the Federal Circuit's "sound judgment").

209. See Vitronics Corp. v. Conceptronic, Inc., 90 F.3d 1576 (Fed. Cir. 1996) (Michel, J.) (Circuit Judge Paul R. Michel's writings on The Use of Intrinsic and Extrinsic Evidence in Claim Construction); and see supra text accompanying notes 19-25.

210. Howard T. Markey, The Federal Circuit and Congressional Intent, 41 Am. U.L. Rev. 577 (1992).

211. Starr, Observations about the Use of Legislative History, supra note 19, at 372.

212. Anderson v. Wilson, 289 U.S. 20, 27 (1933) (Cardozo, J).

213. See Orrin G. Hatch, Congress and the Courts: Establishing a Constructive Dialogue, 6 Mercer L. Rev. 661, 662 (1995).

214. Perhaps with the tremendous success of the Federal Circuit as a specialized court and the failures of the Ninth Circuit as a generalized court, there is reason to rethink the jurisdictional philosophy of "diversity of opinion stemming from divergent points of view and sometimes differing strains of geographical philosophy and thought." See supra note 193 and accompanying text. Rhetorically, has our society advanced beyond this jurisdictional philosophy? Is this jurisdictional philosophy something that we as a society can ever advance beyond? See Gary A. Hengstler, Scalia Seeks Court Changes: Discounts Intercircuit Panel In Favor of Special Courts, 73 A.B.A. J., Apr. 1, 1987, at 20.

215. See Scalia, supra note 8, at 862.

216. See supra text accompanying notes 20-25 (showing how the Federal Circuit decisively responded to the need for theoretical legitimacy in patent claim construction).

217. 28 U.S.C. § 2072(a) (1994).

218. Orrin G. Hatch, Modern Marbury Myths, 57 U. Cin. L. Rev. 891, 893 (1989).

219. Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges, 55 U. Colo. L. Rev. 1, 20 (1983) (then-Circuit Judge Ginsburg).

220. One special interest group that might oppose Congress in this area is the politicized American Bar Association (ABA). See Frank J. Murray, Hill "Reptilian Bastards" Draw Ire of Top Lawyer, Wash. Times, Feb. 14, 1995, at A4 ("The American Bar Association will formally authorize its leaders today to battle a legal-system overhaul by Congress, which ABA President George Bushnell denounced [the new Republican majority] here as 'those reptilian bastards.'").

221. 384 U.S. 641 (1966).

222. See Hatch, supra note 218, at 896-97.

223. Singer, supra note 157.

224. See Zeppos, supra note 172, at 1093, 1097. The study did not provide information as to whether the 16.9% floor discussion, 84.1% statutory text, or 32% reports were even relevant or timely to the issue before the court.

225. See generally The World Almanac & Book of Facts 1997, at 475-77, 498 (Robert Famighetti ed., 1996) (perpetual calendar; United States history).

226. See Appointment of Justices, 2 U.S. (2 Dall.) 399 (Feb. 1790) (declaring and establishing rules of the Court).

227. See Calder v. Bull, 3 U.S. (3 Dall.) 386, 388 (1798) (Chase, J., dissenting).

228. See Marbury, 5 U.S. (1 Cranch) 137, 177 (Marshall, J.) ("It is . . . the . . . duty of the judicial department to say what the law is.").

229. The only mention of the term "common law" in the Constitution is in Amendment VII. See U.S. Const. amend VII (trial by jury in civil cases).

230. For a recent example of this initial stage of common law, see John Cloud, Involuntary Volunteers, Time, Dec. 1, 1997, at 76 (Concerning mandatory volunteer service of high school students, Baltimore teacher Terry Thomas states: "Since the Reagan years, many people just don't care . . . . The only way to get people back into the community is to" force them. Maryland legislator Barrie Ciliberti comments: "It reminds me of something they used to do in the Soviet Union. 'Every Saturday, you will volunteer to help the greater glory of the state.'").

231. INS v. Chadha, 462 U.S. 919, 952 (1983).

232. Black's Law Dictionary 1162 (6th ed. 1990) defines "positive law" as "[l]aw actually and specifically enacted or adopted by proper authority for the government of an organized jural society."

233. Black's, supra note 232, at 276 (definition of common law).

234. 35 U.S.C. § 112, para. 1 - 2 (1994) (Patent Specification) (punctuation and numbering added for clarity) (emphasis and capitalization added).

235. See supra text accompanying note 234.

236. See generally Oliver Wendell Holmes, Jr., The Common Law (Dover Publications 1991) (Little, Brown, & Co. 1881).

237. See Loren A. Smith, Judicialization: The Twilight of Administrative Law, 1985 Duke L.J. 427, 447 (explaining "expert decisionmakers")

238. Stephen Breyer, The Legislative Veto After Chadha, 72 Geo. L.J. 785, 786-87 (1983) (describing the function of the veto as "a legislative compromise of a fight for delegated power.").

239. See Chadha, 462 U.S. at 952 (the Court striking down the legislative veto as unconstitutional); Clinton v. City of New York, 118 S. Ct. 2091 (1998) (the Court striking down the Line Item Veto as unconstitutional).

240. See Starr, Observations about the Use of Legislative History, supra note 19, at 371 (citing Frankfurter, supra note 6, at 527).

241. 300 U.S. 379 (1937) (The switch in time that saved nine).

242. 304 U.S. 64 (1938).

243. Erie, 304 U.S. at 78.

244. Id. at 79. Thirty-nine years after Erie R.R. Co. v. Tompkins, Justice Brennan transposing the term "general" with the term "federal" to assert that "fashion rules of 'general' federal common law" was acceptable behavior by the judiciary. Boyle v. United Tech. Corp., 487 U.S. 500, 516-17 (1987) (Brennan, J., dissenting). Only very recently has the Court finally signaled that it will make good on its reneged promises of the 1930s and earnestly enforce these promises made to the People, Congress, the President, and the several States. In Camps Newfound/Owatonna, Inc. v. Town of Harrison, Justice Thomas' dissenting opinion urged tempering the Court's negative Commerce Clause jurisprudence concerning the powers vested in the several States by the Federal Constitution, reasoning that Congress, by its silence, does not allow the Court to pre-empt state legislation. Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 614-18 (1997) (case addressing charitable exemption from state tax under state tax statute). Heeding Justice Thomas' words, the Court in Printz v. United States moved some of the States' usurped power over its own commerce from the judiciary back to the States by holding that the Brady Act obligation to conduct background checks on prospective handgun purchasers imposed an unconstitutional obligation on state officers to execute federal laws. Printz v. United States, 521 U.S. 898, 935 (1997). See also Printz, 521 U.S. at 936 (Thomas, J., concurring).

245. For a deliberately provocative analysis of administrative law tending towards a similar conclusion by the Chief Judge of the United States Court of Federal Claims see Terry Carter, The Court Conjurer, 84 A.B.A. J. 72 (Dec. 1997); see also Smith, supra note 237.

246. See Hatch, Judicial Activism: Usurping the Constitution and Legislative Powers, supra note 19, at 356. Until the late 1970s, the ABA played its role [in the Judicial selection process] adequately, in large part because the ABA continued to maintain a fairly neutral role on the great issues of the day. The ABA played a useful role for Presidents of both parties in preventing truly unqualified individuals from being named to the bench. Since the 1980s, however, the ABA as a whole has taken stands on a series of controversial political issues on which the bar has no more special expertise or experience than any other citizen of our great land.Id. Since the ABA has become a private, political interest group that, among other things, lobbies the judiciary's usurped legislative power to achieve its political goals, the ABA no longer enjoys "a special, quasi-constitutional role in evaluating Judicial nominees." Id. See also Orrin G. Hatch, Q: Was the Senate Right to Remove the American Bar Association from the Judicial Nomination Process?; Yes: Once an Impartial Screen for Nominees, the ABA now is a Biased, Political Interest Group, Wash. Times, Apr. 21, 1997, § Symposium, at 24.

247. See Lambert v. Yellowley, 272 U.S. 581, 596 (1926).

248. See 50 U.S.C. § 1541(b) (1994) (purpose and policy of war powers resolution).

249. For other recommendations, see infra Part IV.

250. Black's, supra note 232, at 1365.

251. Steven L. Emanuel, Constitutional Law (15th ed. 1997-98) (Abbreviations Used in Text) (summarizing nine constitutional law books: Gerald Gunther & Kathleen Sullivan, Constitutional Law (13th ed. 1997); William B. Lockhart et al., Constitutional Law - Cases, Comments, Questions (8th ed. 1997); Geoffrey R. Stone et at., Constitutional Law (3d ed. 1996); Erwin Chemerinsky, Federal Jurisdiction (2d ed. 1994); John Ely, Democracy and Distrust (Harvard Univ. Press 1980); David Engdahl, Constitutional Power: Federal and State (West 1974); John E. Nowak & Ronald D. Rotunda, Constitutional Law (5th ed. 1995); Bernard Schwartz, Constitutional Law: A Textbook (2d ed. 1979); Lawrence Tribe, American Constitutional Law (2d ed. 1988)).

252. Emanuel, supra note 251, at 125 (emphasis omitted).

253. Id.

254. Black's, supra note 232, at 276. See also id. at 1365 (defining separation of powers by stating that the legislature has the power to make laws, rather than the Constitution's mandate that the legislature has the power to make ALL laws.); id. at 847 (meliorative definition of judicial activism).

255. Black's, supra note 232, at 817.

256. As observed by a member of Congress in 1997, "asking legal scholars to define judicial activism is like asking judges to interpret the Constitution." 143 Cong. Rec. S11,939 (daily ed. Nov. 7, 1997).

257. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 423 (1819). Compare Scalia, supra note 8, at 856-57 (early in his Supreme Court career, Justice Scalia stated that the judicial task of applying originalism "requires immersing oneself in the political and intellectual atmosphere of the time-somehow placing out of mind knowledge that we have which an earlier age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day").

258. McCulloch, 17 U.S. (4 Wheat.) at 423.

259. Oster & Doane, The Power Of Our Judges: Are They Going Too Far? supra note 19, at 29, 30.

260. Orrin G. Hatch, The MacNeil/Lehrer NewsHour: Changes on the Bench (Robert MacNeil ed., broadcast June 17, 1986) (Transcript No. 2797), available in LEXIS, News Library, Arcnws File.

261. Robert H. Bork, Slouching Towards Gomorrah (1996).

262. Id. at 114 (citing Lino Graglia, It's Not Constitutionalism, It's Judicial Activism, 19 Harv. J.L. & Pub. Pol'y 293, 298 (1996)).

263. Search of LEXIS, Mega Library, Mega File (Jan. 4, 1998).

264. Id.

265. Id.

266. Id.

267. Id.

268. Between 1975 and 1979, there were 24 references to "judicial activism" or "judicial activist," with an average of 5 references per year. Between 1980 and 1984, there were 305 references, with an average of 24 references per year. For 1985 to 1989, the amount of references tripled to 993, averaging 200 references per year. The years 1990 to 1994 saw 1,560 references and an average of 312 references per year. In 1995, there were 372 references; 1996 had 578 references; and 1997 had 1,349 references, almost quadrupling 1995's record. Search of LEXIS, News Library, Curnws & Arcnws Files (Jan. 4, 1998).

269. Findlay v. The William, 9 F. Cas. 57, 58 (D. Penn. 1793) (No. 4,790) (Peters, J.) (admiralty case where the scope of the term "high seas" was held to encompass waters at least one sea league from the coast). Compare Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (Marshall, J.) ("The government of the United States has been emphatically termed [by Judge Peters] a government of laws, and not of men."). As an aside, it is interesting that on one hand, Justice Stevens places special confidence in the phrase "Ours is a government of laws," which was not even originally conceived by the man known as Justice Marshall, and on the other hand knew as a law student that a case was wrongly decided if the man known as Justice Holmes and the man known as Justice Brandeis dissented. See John Paul Stevens, Judicial Restraint, 22 San Diego L. Rev. 437, 439 (1985).

270. Compare Posner, supra note 7, at 818 (statutory enactment is a clue that the judiciary has the same amount of freedom).

271. Hatch, Legislative History: Tool of Construction or Destruction, supra note 19, at 47.

272. See generally Bob Woodward & Scott Armstrong, The Brethren: Inside the Supreme Court (1979); Bernard Schwartz, A History of the Supreme Court (1995); Bernard Schwartz, Decision: How the Supreme Court Decides Cases (1997); Edward P. Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles Inside the Supreme Court (Times Books 1998). See also Stevens, Some Thoughts on Judicial Restraint, supra note 19, at 178 ("The Court is deciding more cases on the merits without the benefit of full briefing and argument, using the currently fashionable technique of explaining its reasons in a "per curiam" opinion-a document generally written for the Court by an anonymous member of its ever increasing administrative staff."); Ginsburg, Reflections on the Independence, Good Behavior and Workload of Federal Judges, supra note 19, at 12 (the growth in troops of attorneys serving the court of appeals is cancerous and a "bureaucratization" of the federal courts).

273. Fredonia Broad. Corp. v. RCA Corp., 569 F.2d 251, 255 (5th Cir. 1978) (noting that Justice Oliver Wendell Holmes termed law clerks "puisne judges").

274. Compare generally Ginsburg, A Plea for Legislative Review, supra note 19.

275. Ginsburg, Inviting Judicial Activism: A "Liberal" or "Conservative" Technique, supra note 19, at 550.

276. Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges, supra note 19, at 19.

277. See, e.g., 18 U.S.C. § 43 (1994) (Congress unbelievably making criminal disruption of a rodeo a federal offense rather than leaving regulation of this behavior it up to the individual states).

278. For a good discussion distinguishing the "organic law" of our Constitution from the Court's analysis of the Constitution through its constitutional law, see Orrin G. Hatch & James MacGregor Burns, Still Adequate for the Twentieth Century? A Debate, 1987 Utah L. Rev. 871 (observing that although the Constitution is still adequate as the supreme law of the land, the Court's constitutional law, as the supreme legal precedent of the land, "may change whenever five out of nine Justices resolve a new dispute in a different way.").

279. Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857).

280. See Buck v. Bell, 274 U.S. 200 (1927) (Holmes, J.) Carrie Buck [was] a feeble minded white woman who was committed to the [Virginia] State Colony above mentioned in due form. She [was] the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child. She was eighteen years old at the time of the trial of her case in the Circuit Court, in the latter part of 1924. Id. at 205. A Virginia state statute allowed for the institution's superintendent to have individuals sexually sterilized. Id. at 200. Without analyzing Congress' or the several States Legislature's collective meaning of the relevant Constitutional terms, Justice Holmes upheld the constitutionality of intervention by sterilization, reasoning that under the 14th Amendment, "[t]he principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough." Id. at 207 (citation omitted). See also Hatch, The Politics of Picking Judges, supra note 19 at 44. [A] judge who believes he has the power on his own initiative to prohibit voluntary sterilization on one day may come to believe that he has the power to order forced sterilization on the next day. It is only by adhering strictly to the principle that judges have no power to create law that we can be certain to prevent the later possibility.Id.

281. See the period between Lochner v. New York, 198 U.S. 45 (1905) through West Coast Hotel v. Parrish, 300 U.S. 379 (1937).

282. See the period between Plessy v. Ferguson, 163 U.S. 537 (1896), through the afterwit case of Brown v. Board of Educ., 347 U.S. 483 (1954). See also Orrin G. Hatch, Reverse Discrimination, The Economist, Aug. 18, 1979, § Letters, at 6 (On United States SteelWorkers v. Weber, 443 U.S. 193 (1979): "The purpose of the 1964 Civil Rights Act was not to guarantee any racial group a fixed proportion of the positions and prequisites available in American society. It was to end legal discrimination and to ensure equality of opportunity for all. That is why its language was 'racially colourblind'."); Richmond v. J. A. Croson Co., 488 U.S. 469 (1989) (raising the height of the judiciary's separate but equal doctrine to a strict scrutiny standard for government set-aside programs); Sen. Orrin Hatch, Return Affirmative Action to Original Intent By Banning All Race-Based Preferences, Roll Call, Dec. 8, 1997 (discussing the champerty-like twist of a non-party paying litigant proceeds to delay the inevitable legal holding on affirmative action), available in LEXIS, Genfed Library, Rollcl File.

283. The ABA Role in Judicial Selection Before the Senate Judiciary Comm., Federal Document Clearing House (May 21, 1996) (testimony of John M. Walker, Jr., Second Circuit Judge) ("Impartiality and the elevation of the rule of law above the tempers of the times have always been at the heart of judicial legitimacy in this country."), available in LEXIS, Legis Library, Cngtst File.

284. U.S. Const. art. I, § 8, cl. 18.

285. U.S. Const. art. I, § 8, cl. 18.

286. Hatch, A Dependence on the People, supra note 19 at 959-60.

287. U.S. Const. art. I, § 8, cl. 18.

288. Thomas Jefferson, Draft of the Kentucky Resolution (Nov. 10, 1798), in The Political Writings of Thomas Jefferson 156, 161 (Edward Dumbauld ed., 1955).

289. Kennedy, Judicial Ethics and the Rule of Law, supra note 19, at 1070.

290. I Timothy 1:9 (King James) quoted in Ex Parte James, 713 So.2d 869, 898 (Ala. 1997) (Hooper, C.J., dissenting).

291. U.S. Const. art. I, § 8, cl. 18.

292. Florida v. Wells, 495 U.S. 1, 13 (1990).

293. Orrin Hatch, Judicial Activism: Usurping the Constitution and Legislative Powers, 63 Vital Speeches of the Day 354, 355 (Apr. 1, 1997), available in LEXIS, News Library, Abi Spechs File.

294. United States v. Chicago, 282 U.S. 311, 324 (1931); see Hatch, Congress and the Courts: Establishing a Constructive Dialogue, supra note 19, at 662; 28 U.S.C. § 2072 (1997).

295. Stevens, Some Thoughts on Judicial Restraint, supra note 19, at 180.

296. Tassinari, supra note 5.

297. See Scalia, The Rule of Law as a Law of Rules, supra note 19, at 1180.

298. Mark R. Killenbeck, A Matter of Mere Approval? The Roll of the President in the Creation of Legislative History, 48 Ark. L. Rev. 239, 239 (1995) (footnotes omitted).

299. U.S. Const. art. VI, cl. 2.

300. U.S. Const. art. I, § 8, cl. 18.

301. See Black's, supra note 232, at 1406.

302. Souter, A Tribute to Justice Harry A. Blackmun, supra note 19, at 6.

303. 491 U.S. 397 (1989) (5-4 Majority).

304. Johnson, 491 U.S. at 421 (Kennedy, J., concurring).

305. Starr, The Supreme Court, the Constitution, and the Rule of Law, supra note 19 at 160.

306. Starr, The Supreme Court and the Federal Judicial System, supra note 19, at 1212-13.

307. Id. at 1218.

308. William H. Rehnquist, The Future of the Federal Courts, 62 Vital Speeches of the Day 418, 420-21 (May 1, 1996), available in LEXIS, News Library, Spechs File.

309. See generally Pepper v. Hart, 1 All E.R. 42 (1993).

310. The Federalist No. 78, at 228 (Alexander Hamilton) (Roy P. Fairfield ed., 1981).

311. Id.

312. Hatch, Modern Marbury Myths, supra note 19, at 895.

313. See Hatch, The Politics of Picking Judges, supra note 19, at 36.

314. Hatch, Making a Real Mess, supra note 19 at 145.

315. Frankfurter, supra note 16, at 545.

316. Posner, supra note 7, at 806.

317. Compare Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 487 (1979), stating: Local and state legislative and administrative authorities have been supplanted or relegated to initiative-stifling roles as minions of the courts. Indeed, there is reason to believe that some legislative bodies have welcomed judicial activism with respect to a subject so inherently difficult and so politically sensitive that the prospect of others confronting it seems inviting.Id.

318. U.S. Const. preamble.

319. Orrin G. Hatch, Congress and the Courts: Establishing a Constructive Dialogue, 6 Mercer L. Rev. 661, 662 (1995).

320. Id. at 661.

321. Posner, supra note 7, at 817. See, e.g., 143 Cong. Rec. S848 (daily ed. Jan. 30, 1997) (statement of Sen. Hatch) (Either through blatant abuse or gross oversight, a U.S. District judge appointed by President Clinton sent an order to show cause to Fourth Circuit Court of Appeals judges having the effect of "seeking to force those appellate judges to come before her and justify a decision they recently handed down."); Toni Locy, Senator Assails Order Sent to 3 Judges, 'Egregious' Action May Be Mere Slip, Wash. Post, Feb. 1, 1997, at B03.

322. See Hatch, supra note 70, at 43.

323. Id.

324. Id.

325. Stevens, Some Thoughts on Judicial Restraint, supra note 19, at 180.

326. Compare Stephen F. Rohde, By the Book, L.A. Law., Jan. 1998, at 59, 60 (reviewing Ken Gormley, Archibald Cox: Conscience of a Nation (Addison Wesley 1997)).

327. For other recommendations, see infra Part IV. The rules of construction set out in 1 U.S.C. § 1-7 (1994) may also be incorporated into the Federal Rules of Evidence, where appropriate.

328. Compare Rohde, supra note 326, at 59.

329. See Wendell Phillips, Speeches, Lectures, and Letters 91 (Boston, Lee & Shepard 1863) (speech in Boston on Apr. 12, 1852).

330. See U.S. Const. art. I, § 2, cl. 5.

331. See U.S. Const. art. I, § 3, cl. 6.

332. See U.S. Const. art. I, § 2, cl. 3.

333. See U.S. Const. art. II, § 2, cl. 1.

334. See The Federalist No. 81, at 545-46 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

335. See U.S. Const. art. II, § 4.

336. See U.S. Const. amend. XIV, § 3.

337. See U.S. Const. art. III, § 1.

338. See U.S. Const. art. III, § I.

339. U.S. Const. art. VI, cl. 2.

340. See U.S. Const. art. III, § 1.

341. See U.S. Const. art. I, § 8, cl. 18.

342. See id.

343. See U.S. Const. art. II, § 4; U.S. Const. art. III, § 1.

344. Tassinari, supra note 5.

345. Aro Mfg. v. Convertible Top Replacement Co., 377 U.S. 476 (1964) (Aro II).

346. See U.S. Const. art. I.

347. See U.S. Const. art. IV, cl.2.

348. 28 U.S.C. § 372(c)(7)(B)(i) now reads "which might constitute one or more grounds for impeachment under article II of the Constitution" and § 372(c)(7)(B)(ii) now reads "which, in the interest of justice, is not amenable to resolution by the judicial council." See 28 U.S.C. § 372(c)(7)(B) (1994). For other recommendations, see infra Part IV.

349. See Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges, supra note 19, at 4-5.

350. The Federalist No. 78, at 470 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

351. Id. No. 81, at 484.

352. See 143 Cong. Rec. S11,939 (daily ed. Nov. 7, 1997) (quoting Professor Lawrence Tribe, stating "[t]o say there is a neutral vantage point outside the [judicial] system for someone to declare in an Olympian and purportedly objective way that this is activism and that is restraint is itself a rather arrogant delusion.").

353. See Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges, supra note 19 at 4 (citing R. Berger, Impeachment: The Constitutional Problems 122 (1973) (citing J. Bryce, The American Commonwealth 233 (1908)); W. Wilson, Congressional Government 275-76 (1901)).

354. See Maura Dolan, Rose Bird's Quest for Obscurity, L.A. Times, Nov. 15, 1995, at A1.

355. Id.

356. See Rose Bird, Letter to the Times, L.A. Times, Nov. 23, 1995, at B6.

357. See Ralph Z. Hallow, Republicans Out to Impeach 'Activist' Jurists, Wash. Times, Mar. 12, 1997, at 1. See also Katherine Q. Seelye, House G.O.P. Begins Listing a Few Judges to Impeach, N.Y. Times, Mar. 14, 1997, at A24.

358. Singer, supra note 157.

359. I placed the rule of ejusdem generis in this list in hopes that this rule may aid the members of the federal circuit in the search for the solutions to the construction issues facing patent law. See SGI, Inc. v. United States, 122 F.3d 1468, 1470 (Fed. Cir. 1997) (Judge Rich, quoting from the Court of International Trade, stating "precise functional equivalence to, or commercial interchangeability with, particular exemplars enumerated in the Heading is plainly not required by the term 'similar' or the rule of ejusdem generis." Id. at 1470); Baptist Assoc. v. Hart's Ex'r, 17 U.S. (1 Wheat.) 1, 8 (1819) (first American case to cite to the rule of ejusdem generis).

360. Starr, The Courts of Appeals and the Future of the Federal Judiciary, supra note 19, at 8. See supra note 19 for additional legal writings of Kenneth Starr.

361. See supra note 19, for the bulk of Senator Hatch's legal writings cited in this article.

362. Center for Law and Democracy, Judicial Selection Monitoring Project (visited Nov. 28, 1997) <http://www.4judicialrestraint.org/>. For web cites on Justice Scalia, see John E. Schwenkler, Cult of Scalia (last modified Nov. 24, 1996) <http://members.aol.com/schwenkler/scalia/index.htm>; Jonathan Mitchell, The Scalia Shrine (last modified Nov. 27, 1996) <http:student-www.uchicago.edu/~jfmitche/scalia/>; (an associated organization). The Federalist Society (visited Oct. 17, 1997) <http://www.fed-soc.org/>.

363. Ginsburg, A Plea for Legislative Review, supra note 19 at 1015.

364. See Mark Genrich, U.S. Has Its Own 'Ministry of Truth', The Phoenix Gazette, Dec. 7, 1994, at B5, available in LEXIS, News Library, Arcnws File. See also 2 U.S.C. §§ 285, 1351(e)(2)(E) (1994).

365. Legislative Branch Appropriations Act of 1998, Pub. L. No. 105-55, 111 Stat. 1177 (Oct. 1997).

366. For other recommendations, see infra Part IV.

367. See supra note 41.

368. See supra text accompanying note 58.

369. See supra text accompanying note 77.

370. See supra text accompanying note 145.

371. 282 U.S. 311, 324 (1931).

372. See supra text accompanying note 182.

373. See supra text accompanying note 192.

374. See supra text accompanying note 249.

375. See supra text accompanying note 327.

376. See supra text accompanying note 348.

377. See supra text accompanying note 366.

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